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TMI Blog2024 (11) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... llant in the instant case are appropriately classifiable as works contract service . However, we observe that there is no demand raised against the appellant in the notice under the category of works contract service and therefore, we hold that the demand confirmed against the appellant under the category of commercial or industrial construction service is not sustainable. Accordingly, we set aside the same. Since the demand itself is not sustainable, the question of demanding interest and imposing penalty does not arise. - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) Shri Devaraj Sahu, Advocate for the Appellant Shri S.K. Dikshit, Authorized Representative for the Respondent ORDER The present appeal has been filed by M/s. T T Projects Limited, Dibrugarh, Assam, (hereinafter referred to as Appellant ) against the Order-in-Appeal No. 87/DIB/CE(A)/GHY/15 dated 08.10.2015 wherein the Ld. Commissioner (Appeals) has upheld the demand of Rs.3,89,321/- and set aside the remaining demands confirmed in the Order-in-Original No.45/ Addl.Commr/ ADJ/BT/ST/COMMR/DIB/14-15 dated 23.03.2015. 2. The facts of the case are that the Appellant is a Registered Contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enting the centrally sponsored schemes (CSS) are not leviable to Service Tax. Since the commercial complexes was constructed under the 10% pool fund provided by the Ministry of Urban Development, Govt. of India and the project is meant for the benefit of the poor and low- income group for providing support under the Central Pool, the Appellant contends that the services rendered are exempted from the levy of Service Tax as clarified in the Circular referred supra. The construction of the complex is undertaken in public interest for the benefit of the poor people. Accordingly, he submitted that the demand of service tax confirmed under the category of commercial or industrial construction service in the impugned order is not sustainable. He further submitted that they have undertaken the construction work along with supply of materials. Accordingly, as per the decision of the Hon'ble Apex Court in the case of Commissioner of Central Excise and Customs, Kerala v. Larsen Toubro Ltd. reported in 2015 (39) S.T.R. 913 (S.C.)., the service rendered is appropriately classifiable as 'Works Contract'. Since, there is no demand made in the notice under the category of 'Works C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t'. Since, there is no demand made in the notice under the category of 'Works Contract', we find that the demand confirmed under the category of commercial or industrial construction service is not sustainable. 9. We observe that it is a fact on record that the Appellant had rendered the said services along with materials. The service of construction of complex along with material is appropriately classifiable under the category of works contract service as held by the Hon'ble Apex Court in the case of Commissioner of Central Excise and Customs, Kerala v. Larsen Toubro Ltd. reported in 2015 (39) S.T.R. 913 (S.C.). The relevant portion of the said decision is reproduced below: 17. We find that the assessees are correct in their submission that a works contract is a separate species of contract distinct from contracts for services simpliciter recognized by the world of commerce and law as such, and has to be taxed separately as such. In Gannon Dunkerley, 1959 SCR 379, this Court recognized works contracts as a separate species of contract as follows :- To avoid misconception, it must be stated that the above conclusion has reference to works contracts, which are entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutional provision and, accordingly, we unhesitatingly repel the same. (at para 60) 19. In Larsen Toubro Ltd. v. State of Karnataka, (2014) 1 SCC 708 = 2014 (34) S.T.R. 481 (S.C.) = 2014 (303) E.L.T. 3 (S.C.), this Court stated :- In our opinion, the term works contract in Article 366(29-A)(b) is amply wide and cannot be confined to a particular understanding of the term or to a particular form. The term encompasses a wide range and many varieties of contract. Parliament had such wide meaning of works contract in its view at the time of the Forty-sixth Amendment. The object of insertion of clause (29-A) in Article 366 was to enlarge the scope of the expression tax on sale or purchase of goods and overcome Gannon Dunkerley (1) [State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd., AIR 1958 SC 560 : 1959 SCR 379]. Seen thus, even if in a contract, besides the obligations of supply of goods and materials and performance of labour and services, some additional obligations are imposed, such contract does not cease to be works contract. The additional obligations in the contract would not alter the nature of contract so long as the contract provides for a contract for works and sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We also observe that relying on the decision of the Hon'ble Apex Court in the case of L T Ltd, this Tribunal in the case of M/s.National Building Construction Corporation Ltd. v. Commissioner of Central Excise, Shillong [2022 (66) G.S.T.L. 476 (Tri. Kolkata)], held thatthe construction of complex service rendered along with supply of materials is appropriately classifiable under the category of 'Works Contract Service' and not under the category of commercial or industrial construction service . 9.2. Thus, by relying on the decision of the Hon'ble Apex court referred above, we hold that the services rendered by the Appellant in the instant case are appropriately classifiable as works contract service . However, we observe that there is no demand raised against the appellant in the notice under the category of works contract service and therefore, we hold that the demand confirmed against the appellant under the category of commercial or industrial construction service is not sustainable. Accordingly, we set aside the same. Since the demand itself is not sustainable, the question of demanding interest and imposing penalty does not arise. 10. In the result, we set as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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