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TMI Blog2025 (1) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant. While deciding the matter, the Adjudicating Authority has not decided whether the activity undertaken by the appellant falls under the category of "Works Contract Service" or under "Construction Service". It is also opined that the Adjudicating Authority while holding the subject activity falls under commercial construction service, he has also not provided the facility of the abatement of the value as provided under N/N. 13/2012-ST dated 28.06.2012 while confirming the demand of service tax. The fact is noted that while the appellant has been claiming that activity undertaken by them falls under category of "Works Contract Service" while the department has considered the same is "Commercial Construction Service". The Circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaged in the business of providing "Works Contract Service" and they are registered with the service tax department to this effect. The appellant had filed a Voluntary Compliance Encouragement Scheme (VCES) application on 28.12.2013 declaring their service tax dues as Rs.9,988/- to the Designated Authority namely Assistant Commissioner (Technical), Central Excise & Service Tax, Vadodara-II for availing benefit of the Voluntary Compliance Encouragement Scheme (VCES). The department is of the view that the appellant has not made a true and truthful declaration under VCES scheme and basic premises on which the declaration of the appellant was rejected as follows:- "4. Whereas, it appears that the Assistant Commissioner, City Division, Vadod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clared by assessee" under VCES 1291174 6. Service tax paid "as declared under VCES" by the assessee; 1281186 7. Service tax declared under VCES 9988 6. Whereas, on scrutiny of the VCES application and their calculation sheet submitted by the assessee along with the said application, it appears that the calculation made by the assessee is wrong where they calculated their tax liability by claiming abatement; assessee registered themselves under "Construction service other than residential complex service" and got it amended to "works contract service" of Finance Act, 1994 on 17.1.2014; thus, it appear that the said service provided by the assessee during October'12 to December'12 does not qualify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dues, he cannot be denied the benefit of VCES scheme. However, in the instant case, evidences on record suggests that the declarant not only failed to amend their registration within 30 days of their registration, also appear to have deliberately made false declaration, under VCES, 2013. 15. Following challan copies were produced by the assessee along with their defence submission: Challan No. Challan date Amount 30042 01.12.2012 90781 30040 01.12.2012 64795 30020 29.11.2012 999999 000085 14.05.2012 187327 16. I noticed from the 'accounting code' and 'description' of the challans that these payments were made by the assesssee by classifying their service as all these pay service and not und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s understood that the nature of service executed by the assessee in their declared period of VCES, as construction service"; during October' 12 to December'12, assessee claimed 75% abatement under Notification No. 26/2012 - Service Tax dated 20-6-2012 for "construction service";" 3. Having heard both the sides, I am of the view that the Adjudicating Authority has not considered the work invoices issued by the appellant. While deciding the matter, the Adjudicating Authority has not decided whether the activity undertaken by the appellant falls under the category of "Works Contract Service" or under "Construction Service". I am also of opinion that the Adjudicating Authority while holding the subject activity falls und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders for the Adjudicating Authority. After considering all the facts and the instructions issued by the boards and various other pronouncements of the Higher Courts including the following decisions, the matter may be adjudicated a fresh:- * M/s. NS Construction Company Versus Commissioner of Central Excise & Service Tax - 2019 (10) TMI 495 - CESTAT, Allahabad * M/s. Shree Ganesh Traders Versus Commissioner of Central Goods and Service Tax, Excise, Customs - Udaipur - 2022 (5) TMI 749 -CESTAT, New Delhi. * German Remadies Ltd. Versus CCE, Mumbai - 2018 (11) GSTL 180 * CCE, Tamil Nadu Versus Southern Structural Ltd. 2008 (229) ELT 487. (Supreme Court) * Anand Nishikawa Company Ltd. 2005 (188) ELT 149 (Supreme Court). 5. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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