9911796707
TMI Blog2022 (12) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... iny of the appellant's records, department observed that the appellant is engaged in construction services, construction of commercial and industrial buildings, civil structure services or/and construction of complex services. From the scrutiny of the Balance Sheets, it was observed that the appellant had received a sum of Rs.2,02,72,30,561/- (amount being on higher side as per appellant's records) during the years 2004-05 to 2008- 09 on account of providing construction services. The appellant was also found engaged in providing services to the noncommercial concerns which were not taxable. The department further observed that the conditions of Notification No. 15/2004- S.T. dated 10.09.2004 as amended by Notification No. 19/2005- S.T. dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 23 dated 16.11.2011. Pursuant thereto department has filed the present appeal praying for determination whether the adjudicating authority has not erred in issuing Corrigendum dated 11.10.2011 to carry out major changes in the impugned Order-in-Original dated 17.08.2011 and thus have prayed for remand of matter. Appellant on the other hand has prayed for setting aside the said Order-in-Original qua confirmation of demand and enhancement thereof vide Corrigendum of Order-in-Original. 2. We have heard Shri Bipin Garg and Ms. Jwaria Kainaat, learned Counsels for the appellant/assessee and Mr. Harshvardhan, learned Authorized Representative for the department. 3. Learned Counsel for the appellant has submitted that the appellant is a State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 80 of the Act. However, in subsequent findings appellant is alleged to have suppressed the material facts. It is submitted that appellant is a State Government Undertaking, there is no question of any benefit out of evasion of service tax. Above all appellant had already deposited Rs.30,30,872/- voluntarily, there appears no question of alleged fraud or suppression. The extended period has thus been wrongly invoked by the adjudicating authority below. With these submissions learned Counsel has prayed for the order under challenge to be set aside and his appeal to be allowed. Department's appeal is objected as there is no case of remand. 4. To rebut these submissions learned DR has submitted that adjudicating authority has meticulously ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suing the Corrigendum dated 11.10.2011 to carryout major changes in Order-in-Original dated 16.08.2011. However, it is prayed that appeal may be remanded to the adjudicating authority for fresh consideration. 5. Having heard the rival contentions and perusing the entire records, we observe following to be the admitted facts in the present case: (i) The services in question as detailed in para 36 of the Order-in-Original are all for the government departments. (ii) The nature of services is that of construction of complexes along with the material. (iii) The services are actually been provided by the sub-contractor of the appellant. 6. These admissions when read in the light of the definition of commercial or industrial construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re immaterial, and had to be disregarded, since levy itself of Service Tax was non-existent, no question of any exemption would arise. Hence, we are of the opinion that the question of demanding service tax on such contracts does not at all arises." These findings are sufficient for us to hold that the entire demand for the period prior to July 2007 is liable to be set aside. For the period post July 2007, works contracts could be changed only under "Works Contract Service" [Section 65 (105) (zzzza)] and there is no demand under this head at all. Therefore, the demand for this period also cannot be confirmed. 8. The demands also need to be set aside for the reason that the revenue has failed to produce any evidence to prove a positive act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if they were services simpliciter. However, the services in question are alleged to involve both supply of goods and services and hence cannot be changed under CICS at any rate. 10. As a result of above discussion, the entire demand is held to have wrongly been confirmed. Once the very basis of confirmation of demand goes, the question of legality of enhancement and question of competence to enhance thereof without affording opportunity of hearing to the appellant becomes redundant. Similarly the question of invoking Section 80 waiving off the penalties of Section 70, 76 and 77 of the Finance Act, 1994, becomes redundant. No purpose left anymore for remanding the matter. 11. For determining the query raised in department's appeal, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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