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TMI Blog2023 (6) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration and the same is taxable only from 01.06.2007 - even for the period after 01.006.2007, various decisions of the Tribunal have consistently held that the composite contract or works contract service even after 01.06.2007 cannot be taxed under Construction of Complex Service under Section 65 (105) (zzh) read with Section 65 (30a) of the Finance Act, 1994. Similarly, in the case of Srishti Construction vs. Commissioner of Central Excise ST, Ludhiana [ 2017 (12) TMI 172 - CESTAT CHANDIGARH] , the Division Bench of this Tribunal has also set-aside the demand of service tax under Works Contract Service and has also held that the extended period of limitation is not invokable and allowed the appeal of the appellant with consequential r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is a proprietorship concern having its place of business at Vivekanand Nagar, Jind, Haryana and they are engaged in construction of residential houses on contract basis at various sites of Housing Board of Haryana. During the period in dispute from 16.06.2005 to 31.03.2007, the appellant has received a sum of Rs. 3,24,72,988/- which inter-alia includes the value of material and labour. 6. An inquiry was conducted by the department and certain details were called from the appellant. Based on the information/documents received from the appellant, the department noticed that the appellant had not discharged service tax on the construction services rendered by it to Housing Board of Haryana. As per the department, the total conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involves both supply of material and labour and is rightly classifiable under the category of 'Works Contract Services' rather than "Construction of Residential Complex Service". He further submits that the works contract service was not taxable prior to 01.06.2007 in view of the judgement of Hon'ble Apex Court in the case of CCE vs. Larsen & Toubro Limited as reported at 2015 (39) STR 913 (S.C.). He further submitted that the demand made after 01.06.2007 under the category of 'Construction of Complex Service' would also not sustain as the only possible classification is 'Works Contract Service'. He also submitted that once the impugned work do not confirm to the service category of Construction of Commercial Complex as proposed in the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of services, the same cannot be made taxable under any other taxable category and for this submission, he relied upon the decision of the Tribunal, Chennai Bench in the case of Diebold Systems (P) Ltd. vs. CST, Chennai reported as 2008 (9) STR 546 (Tri.-Chennai). 14. He also submitted that the construction of the individual residential units is not taxable under 'Construction of Complex Services' as the single units remained outside the ambit of definition of residential complex. He has also submitted that the extended period of limitation has been wrongly invoked as the issue relates to interpretation and there was no malafide intention on the part of the appellant to evade payment of tax. 15. On the other hand, the Ld. DR reiterated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal authority proceeded to impose the tax under the head 'Business Auxiliary Service' which is taxable u/s 73(1)(d) and 73(1)(e). The fact that there was no proposal in the show cause notice to include the income as auxiliary business service is indisputable in view of the contents of the show cause notice and therefore in the absence of any notice issued to the respondent in view of the provisions of Section 73, it is clear that imposition of tax and consequently interest and penalty cannot be sustained and the same has been rightly set aside by the Tribunal. As no order to treat the income as Business Auxiliary Service had been passed without proposing the same to the respondent in the show cause notice, the order passed by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quent to that date for the periods in dispute, proposing service tax liability on the impugned services involving composite works contract, under 'Commercial or Industrial Construction Service' or ' Construction of Complex' Service, cannot therefore sustain. In respect of any contract which is a composite contract, service tax cannot be demanded under CICS / CCS for the periods also after 1.6.2007 for the periods in dispute in these appeals. For this very reason, the proceedings in all these appeals cannot sustain." 20. Similarly, in the case of Srishti Construction vs. Commissioner of Central Excise & ST, Ludhiana vide order dated 30.11.2017, the Division Bench of this Tribunal has also set-aside the demand of service tax under 'Works Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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