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TMI Blog2023 (9) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice. Therefore, till 30.06.2012, the appellant is not liable to pay any service tax. For the post 30.06.2012, the appellant has paid the service tax in respect of service to BSNL not contesting the same. The adjudicating authority in the impugned order has observed that the certificate issued by Executive Engineer, NPWD (Nagaland Public Works Department), Kohima cannot be accepted as the proof that the said building is not for use for any commercial consideration - It is very strange that the adjudicating authority has not accepted the said Certificate by only saying that the said Certificate cannot be accepted, but did not explain what other documents are required for consideration to find out the activity of construction, the said Guest House is taxable or not? The said Guest House constructed by the appellant for CIDCO, is not liable for service tax as the same is not used for commercial and industrial use. Therefore, the demand with reference to the said Guest House is also set aside - the appellant has admitted the service tax liability with reference to construction services provided to BSNL/Port w.e.f.30.06.2012 and paid the service tax thereon, the same de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007- 08 to 2012-13 was confirmed along with interest and equivalent amount of penalty was also imposed under Section 78 of the Finance Act, 1994. 2.6 Against the said order, the appellant is before us. 3. The ld.Consultant for the appellant, submits that the show-cause notice is a vague and void abinitio. It is his submission that the demand has been confirmed under Commercial or Industrial Construction Services and is beyond the show cause notice. He further submits that the allegations have been leveled in respect of work undertaken for CIDCO Ltd. and BSNL, but while calculating the proposed demand, the show-cause notice has calculated the amount received towards services provided to Assam State Co-operative Housing Federation Limited, NEDFI, BSNL, Airport Authority,CIDCO, ATDC and Rites. It is his submission that the services provided by the appellant have merits classification under works contract service w.e.f. 01.06.2007. As no demand has been raised against the appellant under Works Contract Service , they are not liable to pay service tax. 3.1 To support his contention, he relies on the judgement of the Hon ble Apex Court in the case of Larsen and Toubro Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince such work is in respect of Airport, the same is specifically excluded from leviability of Service Tax under Section 65(105)(zzzza) of the Finance Act, 2004 and the definition of Commercial or Industrial Construction is specifically excluded the services provided in respect of Airports , but the Adjudicating Authority did not consider the same. 3.8 In regard to services provided to Nagaland through CIDCO, the appellant undertook for construction of work of Nagaland State Guest House cum Emporium. The said building was constructed for the benefit of public of Nagaland, who visit Mumbai for medical and educational purpose also social and cultural activities. The said building is not constructed for any commercial or industrial use and not meant for profit earning. In this regard, a Certificate issued by the Executive Engineer, Nagaland Public Works Department, was discarded by the Adjudicating Authority without assigning any reasons. 3.9 With reference to the services provided to Assam Tourism Development Corporation Limited, it is his submission that the said services relates to construction of work of Tourist Cum Reception Centre, where Assam Tourism Development Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered by him. This would unmistakably show that what is referred to in the charging provision is the taxation of service contracts simpliciter and not composite works contracts, such as are contained on the facts of the present cases. It will also be noticed that no attempt to remove the non-service elements from the composite works contracts has been made by any of the aforesaid Sections by deducting from the gross value of the works contract the value of property in goods transferred in the execution of a works contract. . 41. We are afraid that there are several errors in this paragraph. The High Court first correctly holds that in the case of composite works contracts, the service elements should be bifurcated, ascertained and then taxed. The finding that this has, in fact, been done by the Finance Act, 1994 Act is wholly incorrect as it ignores the second Gannon Dunkerley decision of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate cannot be accepted, but did not explain what other documents are required for consideration to find out the activity of construction, the said Guest House is taxable or not ? Whereas the appellant has explained that the said Guest House is constructed for welfare activity of the Nagaland people who visit Mumbai for medical and educational purposes. The appellant has also explained the nature of the activity that the said Guest House is not for commercial and industrial use. 12. In that circumstances, we hold that the said Guest House constructed by the appellant for CIDCO, is not liable for service tax as the same is not used for commercial and industrial use. Therefore, the demand with reference to the said Guest House is also set aside. 13. In view of the above, we hold that as the appellant has admitted the service tax liability with reference to construction services provided to BSNL/Port w.e.f.30.06.2012 and paid the service tax thereon, the same demand is confirmed and rest of the demand confirmed under the impugned order, is set aside. 14. In that circumstances, no penalty is imposable on the appellant. Therefore, the penalty imposed on the appellant is s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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