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TMI Blog2022 (9) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract service for the remaining period of the demand. Works contract service became taxable w.e.f. 01.06.2007 - It is not in dispute that the appellant was providing services as well as materials. In such circumstances, the service could not have been confirmed under any category except works contract which service became taxable only w.e.f 01.06.2007. Thus, confirmation of the demand under CICS and CCS prior to 01.06.2007 cannot be sustained. Period post 01.06.2007 - HELD THAT:- The demand has been proposed in the show cause notice under works contract but it has been confirmed under CICS or CCS. It is a settled law that the demand proposed under a particular category cannot be confirmed under a different category. Consulting engineer service - submission of the learned counsel for the appellant is that it should have been confirmed on the amount of Rs. 1,19,96,452/- which was actually realized/received during period in issue and not on the basis of gross billing of Rs. 1,58,08,357/- - HELD THAT:- This submission of learned counsel for the appellant deserves to be accepted for the reason that the demand could have been calculated only on the amount actually realized/re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the interest payable thereon under Section 75, is paid within thirty days from the date of communication of this order and further subject to the condition that the benefit of reduced penalty (25% of the Service Tax demanded and payable upto 7.4.2011) shall be available if the amount of penalty so determined has also been paid within the period of thirty days from the date of communication of this order. (iii) I also impose under Section 76 of the Finance Act, 1994 a penalty of Rs. 200/- per day for the period during which such failure continued or at the rate of 2% of the amount of Service Tax due per month (upto 9.5.2008), whichever is higher, till the date of actual payment of outstanding Service Tax, subject to maximum of service tax amount outstanding and payable up to 09.05.2008 upon M/s N.M. Roof Designers Ltd., C-41, Tarun Marg, Tilak Nagar, Jaipur. (iv) I impose a penalty of Rs 10,000/- (Rs. ten thousand only) upon M/s N.M. Roof Designers Ltd., C-41, Tarun Marg, Tilak Nagar, Jaipur under Section 77 (1) (c) of the Finance Act, 1994 for not providing information for 7 days i.e. from 4.10.2012 to 11.10.2012 (date of show cause notice). (v) I impose a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,58,08,357/- supply of tangible goods service 2,32,800/- 5. The calculation of service tax liability has been arrived at in the following manner: Commercial Industrial Construction, Construction of Residential Complex Service and Works Contract Service Period Gross Amt. Value held not liable to service tax Net value on which ST Payable Rate of ST in % (including cesses) ST payable (in Rs.) 2007-08 till 10.05.2007 13718882 0 13718882 12.24 1679191 2007-08 11.5.2007 to 1.3.2008) 213385741 3666840 209718901 12.36 25921256 2008-09 till 23.2.2009) 178934824 13795124 165139700 12.36 20411267 2008-09 24.2.2009 to 31.3.2009) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 76, 77 and 78 of the Finance Act, 1994 [ the Finance Act ]. 7. Shri A.K. Prasad, learned counsel appearing for the appellant, made the following submissions: (i) The demands raised under the heads commercial or industrial construction service [ CICS ] and construction of complex service [ CCS ] cannot be sustained since the services provided by the appellant were in the nature of works contract service, as held by the Supreme Court in Commissioner of C. Ex. Cus., Kerala versus Larsen Toubro Ltd. [ 2015 (39) S.T.R. 913 (S.C.) ] for the reason that the appellant was not only providing services, but was also providing materials for the same; (ii) As per Annexure IX to the show cause notice, services provided by the appellant have been divided in two categories - (i) construction service upto 30.5.2007, and (ii) works contract service for the remaining period of the demand. Since appellant was providing services as well as materials, the services are in the category of works contract, which became taxable w.e.f. 01.06.2007 in view of the decision of the Supreme Court in Larsen Toubro; (iii) For the period w.e.f. 01.06.2007, the demand as per the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and under consulting engineer service has been confirmed on the basis of gross billing of Rs.1,58,08,357/- when, in fact, the demand should have been calculated on the amount of Rs. 1,19,96,452/- actually realized/received during the impugned period; (xi) The demand in respect of supply of tangible goods service relates to Vibrators and JCB Excavators provided on rent. In terms of sub-clause (zzzzj) of clause (105) of section 65 of the Finance Act service tax is not leviable under this category if there is transfer of right of possession or effective control of the goods. In the instant case, these conditions are satisfied. Hence, demand of Rs. 2,32,800/- on this account is not tenable; (xii) Cum-tax benefits has not been extended to the appellants by the adjudicating authority relying on the decision of the Supreme Court in Amrit Agro Industries Ltd. versus Commissioner of C. Ex., Ghaziabad [ 2007 (210) E.L.T. 183 (S.C.) ] . This decision relates to valuation under Central Excise law and cannot be applied to service tax; (xiii) Bulk of the demand is time-barred, since show cause notice was issued on 11.10.2012 for the period 01.04.2007 to 31.03.2012. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category. 13. In this connection it would be pertinent to refer to the decision of the Mumbai Tribunal in Ashish Ramesh Dasarwar vs. Commissioner of Central Excise Service Tax, Nagpur [ 2017-TIOL-3230-CESTAT-MUM ]. The Division Bench of the Tribunal held as follows: 6. As regards the period after 1.6.2007, since the demand was raised under commercial or industrial construction service, whereas admittedly the service is correctly classifiable under works contract service, the demand raised under wrong head of service cannot sustain. 7. As per above discussion, the demand raised under commercial or industrial construction service shall not sustain. Hence, the same is set aside. 14. In M/s. Choudhary Stone Crushing Company versus Commissioner of Central Excise and Service Tax Jaipur II [ 2017-TIOL-3230-CESTAT MUM ], the Tribunal observed as under:- 8. For period commencing on 1/06/2007, the composite services would be liable for classification under Works Contract Service only. But we note that Show Cause Notice has proposed the demand for service tax under the category of Commercial and Industrial Construction Service as well as Repair and Maintenance Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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