9911796707
TMI Blog2021 (2) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand of service tax. 2. The appellant is engaged in commercial construction and management, maintenance and repair. The first show cause notice dated October 13, 2011 for the period 2006-07 to 2010-11 was earlier adjudicated upon by an order dated March 20, 2013. This order was assailed by the Appellant by filing Service Tax Appeal bearing number 57966 of 2013. Initially an interim order dated September 21, 2015 was passed, requiring the Appellant to furnish a detailed chart on matters enumerated in paragraph 5 of the order. The appeal was ultimately allowed by order dated October 27, 2015. The impugned order was set aside and the Adjudicating Authority was directed to scrutinise the nature of each of the work covered in the show cause notice. The demands made on 'works contract' prior to June 1, 2007 were directed to be excluded. The Authority was also directed to re-examine whether any of the repairs and alteration contracts related to buildings that are being rented out to public offices so that the demand made on such contracts could also be excluded. The relevant portion of the order passed by the Tribunal is reproduced below: "4. We find that in consequences of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zzh); and (3) 'Management, maintenance or repair' service as defined under section 65 (64) of the Finance Act and taxable under section 65 (105) (zzg). 6. The Commissioner noted, in connection with the first show cause notice dated October 13, 2011, that the activities undertaken by the appellant could be divided into eight groups. These activities, including in the category of service and the taxability status, as mentioned in the show cause notice, are indicated in the following Tabular Form: S. No. Description of Work Done Category of Service Taxability status as mentioned in Show Cause Notice 1. Work related to Airports Commercial Construction Service The work related to airports are exempt under work contract/ commercial construction service 2. Work related to Autonomous bodies like, CSIR, National Cooperative Development Corporation, Delhi Jal Board Commercial Construction Service These organizations are autonomous bodies and also engaged in commercially exploiting their products/ research. 3. Work related to Govt. Buildings Police Headquarters, Moulana Azad Medical College Commercial Construction Service Construction for non commercial purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible Works Contracts, it would not be leviable for service tax levy before 01.06.2007. IGC, in their fresh submissions stated that, all the projects undertaken by them are not falling under any of the services mentioned in the classification alleged in the show cause notice, but in accordance with the definition were more appropriately classifiable under the "Works Contract Service" as it involves goods as well a labour and services and composite contracts for non-commercial purposes provided to Government were exempted, retrospectively by virtue of Section 98 of the Finance Act, 1994 and thereafter by the Mega Exemption Notification. (ii) Thus, for any contract to be covered under "Works Contract Service" as prescribed under Section 65 (105) (zzzza), following two conditions are required: (i) There must be transfer of property in goods involved in the execution of such contract and that property should be leviable to tax like VAT etc. (ii) The contract must be covered under the one of the five categories as prescribed in the definition of Works Contracts; On perusal of the each of the works contracts, I am of the view that all the above mentioned projects undertaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d made under a particular category of service can always be confirmed under a different category, if it is found as a fact that the nature of service provided actually fall in that category of service. 14. The submissions advanced by the learned Consultant for the appellant and the learned Authorised Representative of the Department have been considered. 15. It is w.e.f. 1 June, 2007 that clause (zzzza) was inserted in section 65(105) of the Finance Act in relation to execution of "works contract". Taxable Service under Section 65(105)(zzzza) is defined as : "65(105)(zzzza) 'taxable service' means any service provided or to be provided to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. Explanation - For the purposes of this sub-clause, "works contract" means a contract wherein,- (i) transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and (ii) such contract is for the purposes of carrying out,- (a) erection, commissioning or installation of plant, machinery, equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a works contract is a separate species of contract distinct from contracts for services simpliciter recognized by the world of commerce and law as such, and has to be taxed separately as such." 17. The Commissioner has recorded a categorical find that each of the "works contract" undertaken by the appellant are not covered under the three services namely (i) commercial or industrial construction, (ii) construction of complex and (iii) management, maintenance or repair mentioned in the first show cause notice. The Commissioner further recorded a categorical finding that the activities undertaken by the appellant would be classifiable as "works contract" as they involved goods as well as labour services. 18. The Commissioner therefore, dropped the demand for the period prior June 1, 2007. But for the demands for the period w.e.f. June 1, 2007 the Commissioner proceeded to examine whether the particular work performed under "works contract" is exempted from levy of service tax under Notifications issued from time to time. 19. Learned Counsel for the appellant has submitted that there was no necessity for the Commissioner to examine whether service tax is exempted under the N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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