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TMI Blog2024 (11) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 - 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration Limited (in short HTCL ) Chandigarh had allotted contracts for construction, repairing up-gradation, development, renovation etc of their various Tourist complexes/ places situated at various places in the State of Haryana and had made payments to the appellant for providing the aforesaid services. However, the appellant did not pay service tax leviable on the amount so received under the provisions of Finance Act, 1994. As per copies of the contracts submitted by the appellant and HTCL, it is observed that during the period from 2003-04 to 2009-10, the appellant was allotted contracts of construction of rooms and family huts for Tourist Resorts, up gradation of parking, roads, restoration, construction etc of various Tourist Cente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from 01.06.2007. 4.3 The learned Counsel further submits that issue is no more res integra and has been held by various benches of the Tribunal that if the service rendered by the assessee is works contract service , even then it cannot be taxed under any other category even after 01.06.2007. 4.4 In support of his submissions, ld. Counsel relies on the following decisions: CCE vs. Larsen Toubro Ltd 2015 (39) STR 913 (SC) Bajrang Lal Gupta vs. CCE Final Order Nos. 60147-60149/2023 dated 05.06.2023 in Appeal Nos. ST/560, 798, 1743/2011 S S Constructions vs. CCE - Final Order No. 60963/2021 dated 10.12.2021 in Appeal No. ST/50910/2014 Srishti Constructions vs. CCE Final Order Nos. 62071-62072/2017 dated 30.11.2017 in Appeal Nos. ST/113 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice 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. 18 . We also find that in the case of CCE Belgaum vs. Mahakoshal Beverages Pvt. Ltd. 2014 (33) STR 616 (Kar.), the Hon ble High Court of Karnataka, under identical circumstances, has held in Para 5 which are reproduced herein below:- We have carefully considered the contentions urged by the learned counsel for the appellant. It is clear from the perusal of the show cause notice that as culled out above that what was proposed was to impose Service Tax amount of Rs. 90,96,501/- u/s 73(1)(a) of the Finance Act. In view of the explanation submitted in response to the show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old of commercial or industrial construction service or construction of complex service in the light of the Hon ble Supreme Court judgment in Larsen Toubro (supra) upto 1.6.2007 b. For the period after 1.6.2007, service tax liability under category of commercial or industrial construction service under Section 65(105)(zzzh) ibid, Construction of Complex Service under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services simpliciter. c. For activities of construction of new building or civil structure or new residential complex etc. involving indivisible composite contract, such services will require to be exigible to service tax liabilities under Works Contract Service as defined under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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