9911796707
TMI Blog2020 (2) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Tax, Division-I, Delhi, for providing various services. During investigation, it was noticed that the Appellant was engaged primarily in providing 'Works Contract Service' and discharged the Service Tax liability by following the provisions of the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 [Composition Scheme] that came into effect from 01 June, 2007. The period of dispute in the present appeal is from April, 2012 to March, 2013. 3. Earlier, a show cause notice dated 17 April, 2012 was issued to the Appellant for the period 2006-07 to 2010-11 alleging that though the rate of tax under the Composition Scheme had been revised from 2% to 4% on 01 March, 2008 by Notification dated 01 March, 2008, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notices dated 12 April, 2012 and 19 October, 2012, referred to above for the earlier periods, a Division Bench of this Tribunal in the Appellant's own case in M/s Airef Engineers Pvt. Ltd. vs CST, Delhi [ST/60458/13 and 50357/14 decided on 29 November, 2017] observed : "6. The second aspect is that the services rendered by appellant are all claimed to be composite in nature. This has been substantially admitted by the original authorities also. We note that as per the ratio laid down by the Hon Supreme Court in Larsen & Toubro Limited, 2015 (39) STR 913 (SC), no service tax liability arises in respect of such composite works contracts for the period prior to 01.06.2007. We also note tht when the contracts are determined to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such relevant date, the tax rate has to be applied and calculated. There can be no estoppels against tax rate revision. We are not in agreement with the proposition that the rate as applicable at the time of commencement of works contract services should be applied for the whole contract. There is no legal support for such proposition." 8. Shri P.K. Sahu, learned Counsel appearing for the Appellant, has submitted that the view taken by the aforesaid Division Bench is not correct and for this proposition placed reliance upon the provisions of the Rule 3 of the Composition Scheme. The said provision as it existed prior to 01 March, 2006 is reproduced below : "3. (1) Notwithstanding anything contained in section 67 of the Act and rule 2A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rks contract. Learned Counsel pointed out that the provider of taxable service who opts to pay Service Tax under the Composition Scheme has to exercise such option in respect of a works contract prior to the payment of Service Tax in respect of such works contract and the option so exercised shall be applicable for the entire works contract and shall not be withdrawn until the completion of the said works contract. The submission, therefore, is that once an option is exercised by the service provider, he does not have the liberty of withdrawing the option until the completion of the said works contract and so he has to continue paying that percentage of the gross amount charged for the works contract that was prevailing at the time the opti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, the service tax was paid at the rate of 2% and was duly received by the department prior to 1-3-2008. The expression 'opts to pay service tax under these rules' cannot be construed and mean the filing of the return and the payment would sufficiently constitute the exercise of option under composite scheme. Apart from relying upon Rules 6 and 7 of the Service Tax Rules there is no iota of piece of paper produced before this Court that an option was exercised prior to 26-3-2008 by payment of the service tax under composite scheme. The authorities have proceeded that since the option was exercised for the first time on 26-3-2008 the petitioner cannot claim that he would still be liable to pay the tax at the rate of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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