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TMI Blog2024 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... under ECIS cannot sustain and the demand has to be made under WCS only. The decision of the Hon ble Apex Court in the cae of L T [ 2015 (8) TMI 749 - SUPREME COURT] has held that the demand in the case of construction services which involves ue of materials as well as rendering of services can be made only under WCS and cannot be demanded under any other heading prior to 1.6.2007. Thus, the demand raised prior to 1.6.2007 is set aside entirely. WCS - The services rendered by the appellant being composite contracts, the demand raised by the department under WCS is in accordance with law. We do not think that the said demand requires any interference. On merits, this issue is held in favour of the Department and against the appellant. Followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services the same would fall under the category of Works Contracts Service with effect from 01.06.2007 onwards. The appellant though received consideration for such services had not discharged any service tax during the disputed period from 01.10.2005 to 31.12.2010. Show cause notice dt. 08.04.2011 was issued to the appellant proposing to recover service tax under the category of Erection, Commissioning and Installation Services till 01.06.2007 and under the category of Works Contracts Services w.e.f. 01.06.2007 till 31.12.2010. After due process of law, the original authority confirmed the demand of service tax, interest and imposed penalties. On appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 2. The Ld. Counsel Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the SCN that the appellant had indulged in any positive act or willful suppression with intent to evade tax, the demand raised invoking the extended period cannot sustain. To support this argument, the learned counsel relied upon the decision of the Hon ble Apex Court in the case of Kaur Singh Vs Collector of Central Excise, New Delhi 1997 (94) E.L.T. 289 (SC). The Counsel also relied upon the decision of Hon ble Supreme Court in Cosmic Dye Chemical Vs CCE Bombay 1995 (75) ELT 721 (SC). It is submitted that the said decision was followed by the Tribunal in the case of Hospitech Management Consultants Pvt. Ltd. Vs CST New Delhi (2023) 7 Centax 134 (Tri.-Del.) to set aside the demand. The Ld. Counsel prayed that the demand raised invokin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioning including related pipe work, duct work and sheet metal work; or (d) thermal insulation, sound insulation, fire proofing or water proofing; or (e) lift and escalator, fire escape staircases or travelators; or (f) such other similar services; The works executed by the appellant during the relevant period involves composite contracts using materials as well as rendition of services. For this reason, the demand raised under ECIS cannot sustain and the demand has to be made under WCS only. The decision of the Hon ble Apex Court in the cae of L T (supra) has held that the demand in the case of construction services which involves ue of materials as well as rendering of services can be made only under WCS and cannot be demanded under any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve act of suppression. 9. The Hon ble Apex Court in the case of Kaur Singh (supra) observed as under : 2 . The assessee was issued a notice dated 10th December, 1981, to show cause why a penalty should not be imposed upon it under Rule 9(2) of the Central Excise Rules, 1944, and why Central Excise duty should not be collected from it on goods cleared without payment of the same during the year 1980-81. The notice, it is common ground, was issued after the expiration of the period of six months. It could, therefore, have been issued only upon the basis that the assessee was guilty of fraud or of collusion or of wilful mis-statement or suppression of facts or of contravention of the provisions of the Act or the Rules with intent to evade paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s shall be refunded. 10. The Hon ble Supreme Court s decision in the case of Cosmic Dye Chemical Vs CCE Bombay 1995 (75) ELT 721 (SC) was relied upon by the Tribunal in the case of Hospitech Management Consultants Pvt. Ltd. (supra) and therefore set aside the demand. 11. After appreciating the facts and following the decisions cited (supra), we are of the considered view that the demand raised under WCS after 01.06.2007 invoking the extended period cannot sustain. The issue on limitation is answered in favour of the appellant and against the Department. 12. From the foregoing, the impugned order is modified as under : (1) The demand raised for the period upto 1.6.2007 under Erection and Installation Service is set aside entirely. (2) The de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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