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TMI Blog2022 (5) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has not paid the service tax. Accordingly, vide show cause notice no. 2844 dated 24.10.2013, the service tax of Rs. 57,17,768/- was proposed to be recovered from the appellant along with interest. The penalty was also proposed to be imposed on the appellant. The said proposal was initially confirmed vide order in original no. 68-14-15 dated 29.12.2014 Commissioner (Appeal) vide Order-in-Appeal number 001-68-14-15 dated 29.12.2014 partly allowed the appeal filed before him. The liability to pay service tax was confirmed, however, was held to be re-calculated after allowing the abatement of 67% in terms of the notification no. 1/2006 dated 1.3.2006 confining the demand of Rs.18,72,979/-. Penalty under section 77 and 78 was confirmed. However, the one under section 76 was waived of in terms of section 80 of the Service Tax Act. Still being aggrieved of the said order in appeal that the appellant has approached this Tribunal vide impugned appeal. 2. We have heard Mr. Alok Kumar Kothari, learned Advocate for the appellant and Dr. Radhe Tallo, Authorised representative for the respondent. 3. It is mentioned on behalf of the appellant that the issue involved in the present appeal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, Commissioning and Installation service as alleged in the show cause notice and confirmed vide impugned order." 7. Thus the only reason for confirming the impugned demand is the non production of the requisite documents by the appellant. From the record, it is apparent that service tax returns have repeatedly been filed by the appellant for the period from 2008-09 to 2012-13, specifically mentioning the nature of services as that of works contract service. The appellant vide letter dated 9.7.2009 and 22.6.2011 has informed the Superintendent Range II Jaipur about opting to pay tax under Rule 3 of Work Contract (Composition Scheme for Payment of Service Tax) Rules 2007 along with an undertaking for not taking the Cenvat Credit on duties or cess paid on the inputs used in or in relation to the said work contract. It is not the case of the Department that the said undertaking has been violated by the appellant. Further, we observe that it has specifically been mentioned since the stage of replying to the show cause notice till filing of the appeal before this Tribunal that the main activity undertaken by the appellants was appellants was installation of tanks, dispensing pum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the said documents. From the submissions of the appellant about the nature of the contract, and in absence of any evidence to falsify the same, we are of the opinion that the contracts awarded to the appellant, were in the nature of works contract services. Section 65B (54) of Service Tax Act, defines work contract as follows: "Works contract" means a contract wherein transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods and such contract is for the purpose of carrying out construction, erection, commissioning, installation, completion, fitting out, repair, improvement, renovation, alteration of any building or structure on land or for carrying out any other similar activity or a part thereof in relation to any building or structure on land" 9. Since the contracts are mentioned to be inclusive of installation of tanks, pumps / equipments, etc. the contracts are held to be in the nature of works contract only. 10. In appellants own case titled as Ram Sewak Tiwari vs. CCE Service Tax Appeal no. 1367/2011 and 1189/2011 as was decided vide final order no. 58096-58097/2017, the similar contracts with the similar allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed of in the above terms." 11. In another order of this Tribunal in the Service Tax Appeal no. 60492/2013 titled as Satish Kumar and Co. vs. CCE & ST Jaipur-I as was decided vide final order no. 52265/2018 dated 20.6.2018 it was held as follows: "6. After hearing both sides and perusal of record we note that during the period of dispute i.e. 2006-11, the appellant has undertaken construction activity for various customers. It can be stated that the services rendered in the form of civil construction involves supply of various goods such as steel, cement etc which get consumed in the process of providing construction service. Such activities are evidently in the nature of Works Contract. The "Works Contract Service‟ was included in the statue under Section 65 (105) (zzzza) w.e.f. 01/06/2007. In the wake of authoritative pronouncement by the Apex Court in the case of L&T Ltd. (supra), no Service Tax can be levied for the period up to 31/05/2007. Consequently, we set aside the demand of Service Tax up to 31/05/2007 in respect of all the civil contracts executed by the appellant. 7. We note that the various contracts executed by the appellant have been classified under "Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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