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TMI Blog2019 (4) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 749 - SUPREME COURT]. The Tribunal had rightly set aside the service tax demand upto 30.5.2017 and confirmed the same from 1.6.2007 onwards. No illegality or perversity could be pointed out in the order passed by the Tribunal which may warrant interference by this Court. Appeal dismissed - decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 16.9.2009 (Annexure A-2) confirmed the demand of service tax of ₹ 84,37,992/- along with interest and also imposed a penalty of equal amount of ₹ 84,37,992/- against the assessee. Feeling aggrieved, the respondent filed an appeal before the Tribunal. The Tribunal vide order dated 11.8.2016 (Annexure A- 3) set aside the demand of service tax upto 30.5.2007 and confirmed the same from 1.6.2007 onwards by relying upon the judgment of the Apex Court in Commissioner of Central Excise and Customs, Kerala v. Larsen & Toubro Ltd. 2015 (39) STR 913 (SC). Further, the Tribunal held that the penalty was also not imposable upon the respondent. Hence, the present appeal by the revenue. 3. Learned counsel for the appellant submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mponent of a works contract from the 'goods' component. It begins by working downwards from the gross amount charged for the entire works contract and minusing from it the value of the property in goods transferred in the execution of such works contract. This is done by adopting the value that is adopted for the purpose of payment of VAT. The rule goes on to say that the service component of the works contract is to include the eight elements laid down in the second Gannon Dunkerley case including apportionment of the cost of establishment, other expenses and profit earned by the service provider as is relatable only to supply of labour and services. And, where value is not determined having regard to the aforesaid parameters, (namely, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the necessary machinery for the assessment of central sales tax was found to be there. The Delhi High Court judgment unfortunately misread the aforesaid judgment of this Court to arrive at the conclusion that it was an authority for the proposition that a tax is leviable even if no rules are framed for assessment of such tax, which is wholly incorrect. The extracted passage from Mahim Patram's case only referred to rules not being framed under the Central Act and not to rules not being framed at all. The conclusion therefore in paragraph 36(2) of the Delhi High Court judgment is wholly incorrect. Para 36(2) reads as follows:- "(2) Service tax can be levied on the service component of any contract involving service with sale of good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t then goes on to say that this is a case of short levy which has been noticed during the lifetime of the deceased and then goes on to state that equally therefore legal representatives of a manufacturer who had paid excess duty would not by the selfsame reasoning be able to claim such excess amount paid by the deceased. Neither of these reasons are reasons which refer to any provision of law. Apart from this, the High Court went into morality and said that the moral principle of unlawful enrichment would also apply and since the law will not permit this, the Act needs to be interpreted accordingly. We wholly disapprove of the approach of the High Court. It flies in the face of first principle when it comes to taxing statutes. It is ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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