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TMI Blog2023 (9) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken the provision of service based on a composite contract. Further, the very fact that the Ld. Commissioner has allowed 67% abatement towards the material cost and 33% towards the service thereby extending the benefit of Notification No. 01/2006-S.T. dated 01.03.2006 itself suggests that the service rendered by the appellant was nothing but works contract. These facts, according to us, are sufficient to uphold the claim of the appellant that the nature of service was clearly works contract service. There was no tax liability since the appellant continued to pay tax under works contract service for the periods under dispute, which is also as per the decision of the Hon ble Apex Court in the case of M/s. Larsen Toubro Ltd. [ 2015 (8) TMI 749 - SUPREME COURT] and therefore, the appellant has to succeed. The nature of service rendered by the appellant in the case on hand is in the nature of a composite works contract, since it involves both service as well as transfer of the property in goods/materials. This is clearly, therefore, not taxable under the head of erection, commissioning and installation service prior to 01.06.2007 as declared by the Hon ble Apex Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed by them was more appropriately classifiable under works contract service and not erection, commissioning and installation services. They also appear to have relied on the clarification issued by CBEC in F.No. B1/16/2007 dated 22.05.2007 and Board Circular No. 128/10/2010 dated 24.08.2010. 3.2 The assessee also took a specific plea, insofar as the valuation was concerned, that the value adopted by them for payment of Service Tax was in order as the cost of land, land development expenditure, infrastructure charges paid to EB and other statutory fees for obtaining various approvals were accounted and grouped under the head erection and commissioning expenses and that the cost of materials like cement, etc., incurred in connection with the same would also be accounted under erection and commissioning charges. They also appear to have admitted that only labour charges relating to laying civil foundation, DP EB work, OH line work, crane hire charges, and tower assembly charges could be related to erection and commission work and that they had claimed exemption under Notification No. 12/2003-S.T. and hence, the Department cannot direct them to avail 67% abatement. Hence, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... site contract service provided by the appellant, was be classified under erection, commissioning and installation service in terms of Section 65(105)(zzd) of the Finance Act, has confirmed the payment of Service Tax for the period 2007 08 to 2010 11, has ordered total recovery of the Service Tax along with applicable rate of interest under Section 75 apart from levying penalty under Section 78 and Section 77 (2) ibid. 4.4 Similarly, in respect of the Statement of Demand dated 03.04.2013, the Order-in-Original dated 27.02.2015 came to be passed thereby confirming the payment of Service Tax for the period from April 2011 to March 2012 along with application interest under Section 75 apart from levying penalty under Section 76 and 77 ibid. 5. It is against these demands that the appellant has filed the present appeals before this forum. 6. When the case was taken up for hearing today, Smt. R. Charulatha, Ld. Advocate, appeared and argued for the appellant. Smt. Anandalakshmi Ganeshram, Ld. Superintendent, defended the orders of the Commissioner. 7.1 The Ld. Advocate would contend at the outset that the Commissioner having clearly acknowledged and accepted the composite n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue has not relied on any other document other than these to even allege that there was suppression of any kind. 7.4.2 In this regard, she would rely on the following orders/decisions: - i. Rolex Logistics Pvt. Ltd. v. Commissioner of Service Tax, Bangalore [2009 (13) S.T.R. 147 (Tri. Bang.)] ii. Steelcast Ltd. v. Commissioner of C.Ex., Bhavnagar [2009 (14) S.T.R. 129 (Tri. Ahmd.)] iii. Hindalco Industries Ltd. v. Commissioner of C.Ex., Allahabad [2003 (161) E.L.T. 346 (Tri. Del.)] 7.5 By relying on the above decisions, she would also argue that for the very same reasons, even the penalties demanded in the impugned orders cannot sustain. 8. On the other hand, the Ld. Departmental Representative relied on the findings of the Commissioner. She has also filed a written submission wherein the findings of the Commissioner have been specifically adverted to. 9.1 We have considered the rival contentions and we have carefully perused the documents placed on record. At paragraph 8.1 of the impugned order dated 22.01.2014, the Ld. Commissioner accepts that the assessee was a manufacturer and supplier of WTGs / Windmills and were also providing erection, comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind electricity generator with lattice tower, Foundation, Control room, HP Structure, 22KV Transformer including EB infrastructure and land and the other is towards erection and commissioning charges for the wind turbine generator wherein the total value of the invoice was for Rs.3 lakhs and service tax liability is calculated on cum tax value. 3.1 It appears on perusal of the Balance Sheets of the assessee and on further scrutiny of the records that they had shown huge amount as expenditure towards Erection Commissioning charges under schedule of expenses . It was noticed that they had reflected expenses under the heads Erection Cost, Transformer Cost, EB Infrastructure Development Charges and Contractual Maintenance Expenses. The details of expenditure reflected under the above head for the year 2007-08 to 2010-11 is as follows: Year Erection Commissioning Charges 2007-08 40,07,50,154 2008-09 27,46,61,113 2009-10 37,30,22,921 2010-11 77,84,16,656 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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