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TMI Blog2023 (5) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with clause (25b) and sub-clause (zzzh) of clause (105) read with clause (30a) and (91a) of section 65 (as amended) of Chapter V of the Finance Act, 1994 inasmuch as the levy of the service tax on the "works contract" per se as well as entry against Serial No. 7, 7(a), 10 and 10(a) of Notification No. 1/2006-ST, dated 01.03.2006 (as amended) by declaring the same are ultra vires the Constitution of India and section 64, 66 and 67 of the Finance Act, 1994 and against the constitutional scheme of the legislation for levying service tax in India and further quash the impugned demand of Rs. 33,07,450/- confirmed in the Order-in-Original dated 28.03.2012 by the Respondent no.2 under the impugned provisions in respect of works contract. B) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the activity entails rendering of taxable services "in relation to commercial or industrial construction" and in relation to "construction of complex". The composite contract, which involves both service and supply of goods are not covered under the said descriptions, which relate solely to providing services. 6. The petitioner is aggrieved by the order-in-original dated 28.03.2012, whereby the Adjudicating Authority has confirmed the demand of Rs.33,07,450/- on the premise that the petitioner is rendering taxable services under Section 65(105)(zzq) and Section 65(105)(zzzh) of the Act (that is services in relation to "commercial or industrial construction" and in relation to "construction of complex"). Admittedly, Section 65(105) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 73 of the Act and Rule 6(1) of the Service Tax Rules, 1994 (hereafter 'the Rules') along with due interest under Section 75 of the Act. b) Education cess and secondary and higher education cess of Rs.4,27,315/-. c) Interest amounting to Rs.4,856 /- under Section 75 of the Act. d) Penalty under Sections 76, 77and 78 of the Act. 9. Another show cause notice dated 30.9.2009 was served upon the petitioner by the Assistant Commissioner of Service Tax Delhi demanding service tax of Rs.3,07,115/- along with cess of Rs.9,214/- paid at the rate of 2.06% applicable at the time of provision of services instead of 4.12% applicable at the time of receipt of the value of taxable services. 10. The Adjudicating Authority [Commissioner (Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Supreme Court in the case of Commissioner, Central Excise and Customs, Kerala v. Larsen and Toubro Limited: (2016) 1 SCC 170 had referred to taxable services covered under Clause (g),(zzd), (zzh), (zzq) and (zzzh) of Section 65(105) of the Act and authoritatively held that the said taxable services referred only to service contracts simpliciter and not to composite works contracts. The relevant extract of the said decision reads as under: "23. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines "taxable serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tifications have been granted qua service tax "levied" by the 1994 Finance Act. We may only state that whichever judgments which are in appeal before us and have referred to and dealt with such notifications will have to be disregarded. Since the levy itself of service tax has been found to be non-existent, no question of any exemption would arise. With these observations, these appeals are disposed of." 12. Admittedly, the challenge raised by the petitioner to the validity of Section 65(105)(zzzq) and (zzzh) of the Act is squarely covered by the decision of the Supreme Court in Commissioner, Central Excise and Customs, Kerala v. Larsen and Toubro Limited (supra). 13. In view of the law laid down by the Supreme Court in Commissioner, Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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