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TMI Blog2025 (1) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... the period April 2007 to March 2008, the appellants have paid service tax under Works Contract Composition Scheme from July 2007 by classifying their service under Works Contract. Revenue entertained an opinion that in view of the CBEC Circular No.98/2007-ST dated 04.01.2008, classification of taxable service is determined based on nature of service and that vivisecting a single composite service and classifying the same under two different taxable services depending on the time of receipt of the consideration is not legally sustainable and a service provider paying service tax on Commercial or Industrial Construction Service cannot classified the same as Works Contract Service after 01.06.2007. Accordingly, a Show Cause Notice dated 23.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise, Salem Dated 14.07.2016 cited as: 2017 (50) S.T.R. 147 (Tri- Chennai) 3. Learned Consultant submits that the appellants have rightly discharged service tax under Works Contract Service exercising one of the two options available; the appellants have exercised the option and reflected the same in the ST-3 Returns; exercising the option is procedural and substantial right of the appellants cannot be taken away merely for the fact that they have not given declaration/ intimation of the intent to avail the compounded Scheme. The issue is no longer res judicata. He relies on the following cases: * M/s Nitson&Amitsu Pvt. Ltd. Vs. Commr. of Service Tax, Kolkata-II Dated 22.03.2018 cited as: 2018 (4) TMI 1322- CESTAT KOLKATA * Mehta Plast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax under Commercial or Industrial Construction Service. 5. Learned Consultant for the appellants submits, in rebuttal, that even after the decision of the Hon'ble Supreme Court in the case of Nagarjuna Construction Co. (supra) various Courts and Tribunals have distinguished the case and held that after 01.06.2007, it was correct to classify even the ongoing projects under "Works Contract Service". He relies on the following: * ABL Infrastructure Pvt. Ltd. vs Commissioner of Central Excise, Nashik-2015 (2) TMI 801-CESTAT MUMBAI. * Commissioner of Central Excise vs Lifeline Builders Pvt Ltd.- 2023(12) TMI 783-CESTAT ALLAHABAD. * Kalpataru Power Transmission Ltd vs Commr. Of CGST & CEX- Gandhinagar-2024 (2) TMI 1254- CESTAT AHMEDAB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him. This would unmistakably show that what is referred to in the charging provision is the taxation of service contracts simpliciter and not composite works contracts, such as are contained on the facts of the present cases. It will also be noticed that no attempt to remove the non- service elements from the composite works contracts has been made by any of the aforesaid Sections by deducting from the gross value of the works contract the value of property in goods transferred in the execution of a works contract. 7. We find that Tribunals and High Courts have been following the above said decision consistently. We find that Tribunal has also held that the option can be exercised for ongoing projects also. We find that CESTAT, New D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex court has held that subject to fulfilment of the conditions in terms of the Composition Scheme of 2007 the appellants are eligible to discharge service tax on such works contract post 01.06.2007 We note that the activities carried out by the appellants become liable for taxation only with effect from 01.06.2007 as such activities prior to 01.06.2007 were not categorized as taxable services therefore it is inconsequential to the issue Post introduction of the new tax entry the appellant discharged service tax in tune to the provisions applicable to them therefore their entitlement cannot be denied 4.1 This issue has been squarely covered by the Hon'ble Tribunal in the case of B.R Kohli Construction Pvt. Ltd (supra) and Jija Buil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is accordingly disposed of. 8. Learned Authorized Representative submits that Hon'ble Apex Court has upheld the validity of the Circular cited above in the case of Nagarjuna Construction Co. Ltd. (supra). However, learned Consultant for the appellants submits that the case has been distinguished by High Courts and Tribunal. Hon'ble Kolkata High Court examined the issue of intimation regarding the exercise of option to pay service tax under compounded Scheme of Works Contract Service and observed [2022 (12) TMI 523 Cal.]that in the absence of statutory format, it cannot be held that the option should be exercised in a particular fashion. Hon'ble High Court held that: 14. The Calcutta High Court also distinguished the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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