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TMI Blog2025 (3) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... Development Authority and other authorities but never got themselves registered under service tax. They performed the work of fixing the poles, wiring the poles, fixing of street light; laying of cables, construction of Tennis court and Basket Ball court, fixing of swings and construction of rallying in the side and between the road. The department observed, during scrutiny, that the appellants failed to pay service tax amounting to Rs. 36,38,492/- (Rs. 35,36,163/- + E. Cess Rs. 70,723/- + S.H.E. Cess Rs. 13,606/-) during the period 2005-2006 to 2009-2010 under the category of Erection, Commissioning & installation service relating to the work undertaken for installation of electrical devices, laying of drain and similar services contraven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.C.) service tax under any other category simplicitor cannot be demanded for services which are in nature of WCS, therefore, notice dated 21.10.2010 vide which the demand was raised under the category of ECIS is legally not sustainable and resultantly, OIO and impugned OIA passed in pursuance to such notice are also legally not sustainable. This also stands clear from Final Order No. 50662/2019 dated 01.05.2019 (para 11 to 17) passed by the Tribunal in the case of Gurjar Construction versus CCE, Jaipur - II in Service Tax Appeal No. 57731 of 2013 decided on 01.05.2019. Reliance is also placed on India Guniting Corporation versus CCE, New Delhi - 2021 (52) GSTL 174 (Tri.). In view of this, confirmation of demand under the category of ECIS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Authority during the impugned period for undertaking activities like : "a. Fixing the poles, b. Wiring the poles, c. Fixing of street light (road light), d. Laying of cables. e. Construction of tennis court and basket ball court, f. Fixing of swings, and g. Construction of railing (iron railing) in the centre and sides of the public roads along with the material." The department has alleged the activity to be classifiable under 'Erection, Commissioning and Installation Service' and the appellant has claimed it to be called as 'Works Contract Service'. The controversy has been put on rest by Hon'ble apex court in Larsen & Toubro (supra) case. While following this decision in the case of M/s Gurjar Construction (supra), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned by the contractor. These deductions are ordinarily to be made from the contractor's accounts. However, if it is found that contractors have not maintained proper accounts, or their accounts are found to be not worthy of credence, it is left to the legislature to prescribe a formula on the basis of a fixed percentage of the value of the entire works contract as relatable to the labour and service element of it. This judgment, therefore, clearly and unmistakably holds that unless the splitting of an indivisible works contract is done taking into account the eight heads of deduction, the charge to tax that would be made would otherwise contain, apart from other things, the entire cost of establishment, other expenses, and profit earned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered 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 execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue." 9. This Tribunal has been following the said decision. The decision of Supreme Court is law of land and the Tribunal is bound by the same. The adjudicating authorities are held to have violated the judicial protocol. 10. We also find that there has been a substantial litigation on the applicability of the various tax entries and in case of composite works contract the position got clarified only after the decision of the Supreme Court in Larsen & Toubro case supra. Hence the non-payment/partial payment was due to prevalent confession about nature of such services where the transfer of goods is agreed for rendering servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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