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TMI Blog2024 (12) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... IONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT] and the activities carried out by the Appellant, which includes supply of goods and materials and when the Appellant had paid VAT as applicable under Works Contract, to consider the gross amount as consideration and to classify the goods under the category of Erection, Commissioning or Installation services is unsustainable. Conclusion - For the period 10.09.2004 to 01.06.2007, the appellant is not liable to service tax under the category of 'Erection, Commissioning or Installation' services in view of the decision of the Hon'ble Supreme Court in the case of M/s. Larsen and Toubro Ltd. Further for the period 01.06.2007 to 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant fall under the category of 'Works Contract' Service and the Hon ble Supreme Court in the matter of CCE, Kerala Vs. Larsen Toubro Ltd 2015 (39) STR 913 (SC), held that Works contract are indivisible works contracts, there is no liability to Service Tax prior to 01.06.2007, whereafter Finance Act, 2007 expressly made such contracts liable to service tax, Section 65(105) of Finance Act, 1994 and levied Service Tax only on contracts simpliciter and not composite indivisible works contract, there was no charging section specifically levying Service Tax only on works contracts, measure of tax with service element derived from gross amount charged for works contract less value of property in goods transferred in execution of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o introduction of such entry or inclusion of certain services, the services rendered by the Appellant were not taxable. The Learned Chartered Accountant (CA) also drew our attention to the invoices showing the activity including liaison works, site preparation, etc., and submitted that the demand cannot be made by clubbing different categories of services and it is a settled proposition that demand of service tax under a head, which is not proposed in the show cause is not permissible. The Learned Chartered Accountant (CA) relied on the following decisions; i. CC.Ex Cus Vs. M/s Mahakoshal Beverages Pvt., Ltd.,-2014 (33) STR 616 (Kar), ii. M/s Balaji Contractor Vs. CCEx-2017 (52) STR 259 (Tri. Del), iii. M/s Doon s Caterers Vs. CST-2016 (42) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders clearly specify that the appellant is required to render these services, and separate consideration is mentioned for these services and in some cases the appellant had entered into separate agreements for rendering such services. The appellant submitted that in a single contract two separate and distinct obligations can be created, and such obligations can be embodied in a single instrument. Reliance is placed on the decision of the Hon'ble Supreme court in the case of State of Madras Vs. Gannon Dunkerley Company, [9 STC 353]. Therefore, even if a single contract is entered into wherein the scope of service and the consideration for service is mentioned separately it should be construed that there are two different agreements with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and submitted that there is no reason or justification to invoke the extended period of limitation, since there was confusion in the issue involved and classification of the service at the relevant time. The Appellant had bonafide belief that the activities carried out by them are not taxable at the relevant time. The Learned Chartered Accountant (CA) also relied on the following decisions and submitted that the burden to prove taxability and classification is on the Revenue. i. S N Uppar Co., Vs. C.CEx-2008 (11) STR 34 ( Tri. Bang) ii. United Telecom Ltd., Vs. CST-2008 (9) STR 155 (Tri. Bang) iii. Elite Detectives Pvt., Ltd., Vs. CST-2006 (4) STR 583 (Tri. Bang) iv. Indian Hotels Co. Ltd., Vs. CST-2015 (36) STR 1268 (Tri. Bang) 10. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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