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TMI Blog2025 (3) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... to some other transactions. There is also some doubt about the kind of material that might have been used in execution of "works contract" as the only evidence adduced is that some materials have been purchased by the appellant, which are apparent from the Profit and Loss Account, but the details of use of such materials are not available. Therefore, it is obvious that there is a need to re-examine the whole contracts in the light of certain developments post issuance of show cause notice to understand whether the nature of the transaction is in the nature of WCS or otherwise. It is obvious that as far as period beyond 01.07.2010 is concerned, any service provided within the port will be covered within a single definition of "port service" irrespective of classification under different service, either claimed by the appellant or by the Department. Similarly, there is also merit in the claim by the appellant that they have provided road services in relation to VPT also. They have also provided certain services in relation to railways within the VPT, which are clearly excluded and exempted, which has been otherwise also allowed in relation to other recipient of services or in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Rs. 1 16.06.05 to 31.03.2008 C.No: V/15/208/08- Adj dated 12.01.09 MMRS ST: 69,38,241 + Ed Cess: 1,38,765 + SHE Cess: 25,161 Total: 71,02,167/- 2 2008-09 C.No: V/15/181/2009- Adj dt: 23.10.09 MMRS, Supply of Tangible goods, Erection and Commissioning, cleaning service, site formation service 60,01,275 3 2009-10 C.No. V/15/155/2010- Adj dt: 20.10.10 MMRS and Commercial or industrial construction service 50,73,557 4 2010-11 C.No: V/15/172/2011- Adj dt: 20.10.2011 MMRS 15,10,450 Port service/MMRS 24,91,332 3. On Adjudication, the Commissioner by way of common order in respect of the 4 show cause notice cited above passed an order dated 27.09.2012 (impugned order). He examined the various services claimed to have been provided by the appellant under the different categories as also the defence taken by the appellant and came to the various conclusions in respect of these services. He has primarily negated the claim that the said service was classifiable under the category of Works Contract Service (WCS) on various grounds based on the provisions under the Finance Act 1994 as regards definition of these services as also the facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory of "port services", no separate classification can be adopted for any service provided within the port whether they are otherwise classifiable under MMRS or WCS or otherwise. Therefore, in view of the above, he confirmed the remaining demand and also imposed penalty. 5. The appellant is in appeal against the said impugned order. 6. Learned Advocate for the appellant is mainly contesting on two grounds. Firstly, she is submitting that if the entire contract is evaluated in its totality, it would be obvious that it is in the nature of works contract, as there are material portions where the rights in property in goods has already been transferred. Secondly, the fact that they have also paid VAT on said transaction would also substantiate the fact that the entire activities being performed were only in the nature of WCS. She has also pointed out that there are certain clauses in the contract which clearly brings out that steel and cement were to be procured by the appellant themselves. She is relying on the judgment of Larsen & Toubro to substantiate the claim that these are individual contracts and therefore they cannot be classifiable under different sub-categories like MMR et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for not considering the services under the category of WCS. His findings in relation to WCS are at para 46.3 and 46.4 cited below for ease of reference: "46.3. From the definition, it can be seen that, for being classified under works contract service, sales tax should be leviable on the works executed. Though the assesses have claimed that their services are classifiable under works contract service, they have not produced any evidence to substantiate their claim that the works executed by them are leviable to sales tax, so that a primary component of the definition of the 'works contract service' is satisfied. Further, in the above definition, the phrase 'works contract' was defined to include construction of new building or a civil structure etc., and construction of new residential complex. It also includes completion and finishing services in relation such new building/civil structure or new residential complex. Obviously, there would be no completion and finishing services of old buildings. Hence, it has to be construed that the completion services mentioned are in relation to new buildings only. Similarly, the repair, alteration etc mentioned therein cover such services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts in the light of certain developments post issuance of show cause notice to understand whether the nature of the transaction is in the nature of WCS or otherwise. It is obvious that as far as period beyond 01.07.2010 is concerned, any service provided within the port will be covered within a single definition of "port service" irrespective of classification under different service, either claimed by the appellant or by the Department. Similarly, there is also merit in the claim by the appellant that they have provided road services in relation to VPT also. They have also provided certain services in relation to railways within the VPT, which are clearly excluded and exempted, which has been otherwise also allowed in relation to other recipient of services or in relation to other contracts. Therefore, we find that matter needs to be remanded back to the Adjudicating Authority to examine all the materials adduced by the appellant to come to the conclusion whether it is in the nature of WCS or not in terms of definitions in the Finance Act with effect from 01.06.2007 for WCS. In case, it is observed that it is not the nature of WCS then for the period prior to that it has to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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