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TMI Blog2019 (5) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... t CCS. The show cause notice alleged that the Appellant was providing CCS service and the demand has also been confirmed under this category by the adjudicating authority. The impugned order, therefore, deserves to be set aside for this reason alone since the demand made under a particular category of service found to be incorrect in a subsequent proceeding, cannot be sustained. Demand set aside - appeal allowed - decided in favor of appellant. - SERVICE TAX APPEAL NO. 57731 OF 2013 - FINAL ORDER NO.50662/2019 - Dated:- 1-5-2019 - MR. JUSTICE DILIP GUPTA, PRESIDENT And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri O.P. Agarwal, Consultant for the Appellant Shri G.R. Sharma, Authorized Representative for the Respondent ORDER JUSTICE DILIP GUPTA: This appeal seeks the quashing of the order dated 28 February, 2013 passed by the Commissioner (Appeals) that had been filed to assail the order dated 23 June, 2011 passed by the Deputy Commissioner of Central Excise. 2. A show cause notice dated 21 February, 2011 was issued to the Appellant requiring it to explain why Service Tax to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction of a new residential complex or a part thereof; or (b) completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services; or (c) repair, alteration, renovation or restoration of, or similar services in relation to, residential complex. 8. Section 65(105) deals with Taxable Service and in relation to Construction of Complex , Section 65(105)(zzzh) is reproduced below : 65(105)(zzzh) - to any person by any other person in relation to construction of complex. 9. It is w.e.f. 01 June, 2007 that (zzzza) was inserted in Section 65(105) of the Act in relation to execution of Works Contract . Taxable Service under Section 65(105)(zzzza) is defined as: 65(105)(zzzza) - to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution Bench to be eight in number. What is important in particular is the deductions which are to be made under sub-paras (f), (g) and (h). Under each of these paras, a bifurcation has to be made by the charging Section itself so that the cost of establishment of the contractor is bifurcated into what is relatable to supply of labour and services. Similarly, all other expenses have also to be bifurcated insofar as they are relatable to supply of labour and services, and the same goes for the profit that is earned by the contractor. These deductions are ordinarily to be made from the contractor s accounts. However, if it is found that contractors have not maintained proper accounts, or their accounts are found to be not worthy of credence, it is left to the legislature to prescribe a formula on the basis of a fixed percentage of the value of the entire works contract as relatable to the labour and service element of it. This judgment, therefore, clearly and unmistakably holds that unless the splitting of an indivisible works contract is done taking into account the eight heads of deduction, the charge to tax that would be made would otherwise contain, apart from other things ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of property in goods transferred in the execution of a works contract. 11. It is, therefore, clear from the aforesaid judgment of the Supreme Court in Larsen Toubro that a Composite Works Contract cannot be taxed under CCS under Section 65(105) (zzzh) as the scope is limited to cover contract of service simplicitor only. 12. What is also important to note is that the definition of CCS in Section 65(105)(zzzh) remained the same even after 01 June, 2007 when WCS was introduced. In the absence of any change in the definition of CCS, the judgment of the Supreme Court in Larsen Toubro will apply to a period after 01 June, 2007 also. 13. The Appellant had undertaken the activity under a composite and indivisible works contract and by no means can it be said that it was a contract for Service simplicitor. The show cause notice was, however, issued to the Appellant alleging that the Appellant is providing CCS services under Section 65(105)(zzzh) of the Act. 14. The position that comes out very clearly, therefore, is that even prior to 01 June, 2007 and post 01 June, 2007, the nature of service rendered by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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