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TMI Blog2020 (6) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Appellant was paying service tax regularly on all the services and stopped making payment of tax from January, 2009 in view of Circular No. 108/02/2009 - ST dated 29.01.2009 and also intimated the same to department. For the composite contract (works contract) executed for M/s Manjeera Project, the service tax was paid adopting the valuation as per Rule 2A of 'Service Tax (Determination of value) Rules, 2006' i.e. deduction of materials value from the gross/invoice value, and paid service tax at full rate on the labour portion of the contract. The applicable service tax on rental incomes on property (rents), maintenance/repair, consultancy etc., was partly paid utilising the CENVAT credit and partly in cash. As it appeared to Revenue tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces rendered by M/s Manjeera Constructions towards, Maintenance, Management and Repair works, as detailed in Annexure-IV to this notice, should not be classified under "Management, Maintenance & Repair Services" and an amount of Rs. 91,76,607/- for the period 2005-06 to 2009-10, should not be demanded from them on account of providing taxable services, under Section 73(1) of the Finance Act, 1994 read with the proviso thereto, and an amount of Rs. 90,42,207/- paid under "Business Support Services" should not be adjusted towards liability of these services; (v) the services rendered by them towards Renting of Immovable properties, as detailed in Annexure-V to this notice, should not be classified under "Renting of Immovable Property Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no longer res-integra and it has been held by Hon'ble Supreme Court in the case of CCE Vs Larsen & Toubro [2015 (39) STR 913 (S.C.)] that prior to 01.06.2007 only service contracts simplisitter (not involving supply of material) are taxable under the existing classification of CICS, ICS, CCS, etc. Accordingly, we set aside the demand of Rs. 34,91,178/-. We also take notice that there is no proposal in show cause notice to alternatively classify and demand tax under the head works contract services, w.e.f. 01.06.2007. 5. The next issue is service tax liability on promoters / builder / developer prior to 01.06.2010 in respect of construction of residential complex. 6. We find that the CBEC by way of clarification vide Circular No. 108/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme' is optional, and such option is at the volition of the assessee. The composition scheme cannot be imposed on the assessee, as have been clarified by the Ministry of Finance vide Circular No. B-1/16/2007- TRU dated 22.05.2007. Similar view has been taken by this Tribunal in Interarch Building Products P. Ltd., Vs. CCE, Noida [2018 (10) GSTL 330 (Tri-All)]. Accordingly, we allow this ground in favour of the appellant and set aside the demand of Rs. 1,32,29,790/-. 9. So far, the demand of Rs. 91,76,607 under the head 'maintenance and repair service' is concerned, Learned Counsel urges that the appellant does not dispute the tax liability, and they have already paid the amount of Rs. 90 lakhs (approximately) prior to the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , [2006 (1) STR 73 (S.C.)], D.S. Narayana & Company Pvt Ltd., Vs CCE, Visakhapatnam-II [2017 (4) GSTL 20 (Tri-Hyd)]. Further, service tax under 'management, maintenance and repair service' and 'engineering consultancy service' had been deposited prior to issue of show cause notice, along with applicable interest. 13. Learned AR for Revenue relies on the impugned order. 14. Having considered the rival contentions and the facts and circumstances, we hold that no penalty is imposable under Section 77 and 78 of the Finance Act, as the issues involved are interpretational in nature and the appellant have deposited the admitted taxes prior to issue of show cause notice, along with interest. The other grounds have already been discussed and deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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