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TMI Blog2025 (1) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made by the department to establish that these two services were rendered as services simpliciter. It has been held by the Supreme Court in Larsen Toubro [ 2015 (8) TMI 749 - SUPREME COURT ] that the charge of service tax under various heads of section 65 (105) other than section 65 (105) (zzzza) is only a charge of services simpliciter. Therefore, there cannot be any demand of service tax under any head other than under works contract services. There is no specific demand under works contract services - This charging section specifically excludes works contracts in respect of roads as well as the works contracts in respect of dams . Therefore, the demand of service tax either on the construction of roads or on the tiling of the reservoir for dams cannot be sustained. Demand of service under reverse charge mechanism on GTA service - HELD THAT:- Section 65 (50a) defines goods transport agency as any person who provides service in relation to transportation of goods by road and issues a consignment note, by whatever name called. Section 65 (105)(zzq) defines goods transport agency service as a service provided to any person by goods transport agency in relation to transport of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellant proposing demand of service tax of Rs. 2,02,73,997/- for the period 2008-09 to 2011-12 invoking the extended period of limitation under section 73 of the Finance Act 1994 Finance Act. It was also proposed in the SCN to impose penalties under section 76, 77, 78 of the Finance Act. 3. The proposals in the SCN were confirmed by Order dated 22.12.2017 Impugned order passed by the Principal Commissioner assailing which the appellant filed this appeal. 4. We have heard Shri B.L. Narasimhan, learned counsel for the appellant assisted by Ms. Daliya Singh and Shri Manoj Kumar, learned authorised representative appearing for the department and perused the records. 5. On scrutiny of the audit reports of the appellant, the department found that the amounts indicated in the ST-3 returns as payments received for taxable services had not tallied with the receipts shown in the balance sheets. Accordingly, summons dated 29.07.2013 and 02.09.2013 were issued to the appellant seeking re- conciliation statements and documents which were provided by the appellant by its letter dated 19.09.2013 along with copies of work orders. In these documents, the appellant's claim was that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the show cause notice failed to classify the services and it was not clear whether the demand was being made under the construction of complex services or under the works contract services. It is his submission that the contracts which it had received were for providing services along with the use of materials. Therefore, they were in the nature of work contract services. For that reason, as per the judgment of the Supreme Court in Commissioner of C. Ex. & Customs, Kerala vs. Larsen and Toubro 2015(39)STR 913(SC) service tax could not have been demanded under the construction of complex services. As far as the "works contracts services" are concerned, while every service which is rendered along with use of materials falls under the definition of "works contract" not all works contracts are exigible to service tax. In terms of section 65(105) (zzzza) of the Finance Act, only some types works contracts covered within the definition were exigible to service tax. Section 65 (105) (zzzza) during the relevant period specifically excluded services rendered in relation to construction of roads from its ambit. Therefore, the services rendered by the appellant with respect to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge mechanism in respect of the transportation services received by the appellant. 16. Learned authorised representative appearing for the department supported the impugned order. 17. We have considered the submissions made by both the sides and perused the records. 18. Of the six heads under which amounts were received by the appellant for providing services, the appellant already paid service tax in respect of "construction of boundary walls and area grading" and settled regarding two disputed services, namely, supply of machinery, boulders and dust and supply of aggregates under the VCES scheme. The appellant submits that it had also settled dispute regarding the demand of service tax under reversed charged mechanism under GTA services received by it under the VCES scheme. 19. Therefore, what remains to be decided are the taxability of (a) services of construction of road by the appellant as a sub-contractor; (b) construction and fixing of tiles in water reservoir by the appellant as a sub-contractor and (c) service tax under reverse charge mechanism on the transportation service received from individual truck owners. 20. The submission of the learned counsel for the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the reservoir for dams cannot be sustained. 24. As far as the demand of service under reverse charge mechanism on GTA service is concerned, section 65 (50a) defines goods transport agency as any person who provides service in relation to transportation of goods by road and issues a consignment note, by whatever name called. Section 65 (105)(zzq) defines "goods transport agency service" as a service provided to any person by "goods transport agency" in relation to transport of goods by road in a goods carriage. Unless the service provider is a "goods transport agency", its services are not taxable either at the hands of the service provider or at the hand of service recipient because such services are out of the purview of the charging section. In order for an organisation to be a goods transport agency it must issue consignment notes. It is a well settled legal position that individual truck owners who do not issue consignment notes are not covered by the definition of goods transport agency and the services rendered by them are not exigible to service tax. 25. Learned counsel for the appellant submits that to the extent the appellant had received amount through goods transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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