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TMI Blog2025 (4) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.09.2013 No. 005-006/2020-21 dated 21.07.2020 passed by Ld. Commissioner, CGST & Central Excise, Udaipur in remand proceedings Show Cause Notice dated 3.9.2013 14.9.2011 7.8.2012 23.10.2007 22.10.2010 Period in dispute April 2012 to Match 2013 April 2010 to March 2011 April 2011 to March 2012 1.8.2004 to 30.09.2007 1.4.2009 to 31.3.2010 Service Tax Rs. 13,97,264/- Rs. 44,34,322/- Rs. 26,48,329/- Rs. 1,72,96,652/- [94,97,964 + 77,98,688] 2. The facts which culminated into the impugned orders are as follows:- The appellant, herein, Gainwell Commosales Private Limited was earlier known as M/s Tractors India Private Limited. The appellants had obtained the service tax registration for rendering services under the category of Maintenance and Repair Services, Goods Transportation Agency Services and erection and Commissioning Services. During the audit of the records of the appellant, it was observed that the appellants had entered into contract with M/s Hindustan Zinc for maintenance and repair of their heavy dumpers and were collecting charges under the name of operation and maintenance charges per hour basis (M & R Charges) which were collected on the basis of run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... site of provision of services. It is further submitted that the impugned show cause notices had reached this Tribunal earlier in form of Service Tax Appeal No. 66/2009 and Service Tax Appeal No. 449/2012. Both those appeals were disposed of by this Tribunal vide common Final Order No. 54655-54656/2016 dt. 4.10.2016 with directions for remanding the matter to the Commissioner for re-adjudication after considering the pleas/grounds raised by the appellant. In remand proceedings, the appellant filed the written synopsis on 11.10.2019 but the Commissioner again has confirmed the demand of service tax amounting to Rs. 1,72,96,652/- on the differential value of consideration under sub-clause 1 and 2 as mentioned above, despite that charges under clause 1 are such on which the VAT was paid by the appellant. The said order has been challenged in Service Tax Appeal No. 51196/2020. The remaining three appeals are with respect to the subsequent show cause notices where the demand has been confirmed under Maintenance and Repair Service observing that the present transaction do not fall under Works Contract Service. 4.1 Learned counsel has impressed upon that in the said composite contracts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racts as were entered between appellant and M/s Hindustan Zinc Limited are the composite contracts involving supply of goods as well as for providing the service. Such Contracts were there is a contract of supply of goods as well as of providing services, are termed as 'Works Contracts' and the same were made taxable w.e.f. 01.06.2007 under the category of 'Works Contract Services' as held by the Hon'ble Apex Court in the case of Commissioner v. Larsen & Toubro Ltd. [2015 (39) S.T.R. 913 (S.C.)]. The Hon'ble Supreme Court in Larsen & Toubro (supra) in paragraph 24 drew a distinction between the service contracts simpliciter and a composite works contracts which would involve both services and goods and held that it is only w.e.f. June 01, 2007 that composite contracts can be subjected to levy of service tax and not before this date. The relevant portions of the judgment are reproduced below: "24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p before this Tribunal in the case of Xerox India Ltd. reported as 2019 (20) GSTL 96 (Tri.-Chand.) wherein this Tribunal has held that if service has been provided along with material and the value of material supplied cannot be vivisected, in that circumstances, appropriate classification of the service shall be works contract service and same is not taxable prior to 01.06.2007. Hence, prior to 1.6.2007, even the service portion of a composite contract was outside the ambit of service tax net. Accordingly, the repair and maintenance services under clause (zzg) of Section 65(105) refers only to contracts for service simpliciter and not composite contracts like the present ones. Therefore, no service tax is leviable on such composite contracts upto 1.6.2007. Similar proposition has been reiterated in the following cases: * Total Environment Building Systems Pvt. Ltd. v. Deputy Commissioner of Commercial Taxes, 2022 (63) GSTL 257(SC) * SEW Infrastructure Limited (Formerly Known As "M/S Sew Constructions Ltd.) vs. Commissioner Of Central Excise, Raipur, 2023 (5) TMI 764-CESTAT NEW DELHI 9. We further observe that with effect from 1.6.2007, service portion of composite works contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be sustained." 11. In the appellant's own case titled as M/s Gainwell Commosales Private Limited vs. Commissioner of Central Excise and Service Tax, Ranchi reported as 2023 VIL 600 CESTAT KOLKATA, this Tribunal has set-aside the similar demands on merits as well as grounds of limitation. Resultantly, we hold that the confirmation of demand for the period till 01.07.2012 is not sustainable. The contracts in question were not for the service simpliciter of Maintenance & Repair but were in the nature of Works Contract Service. 12. Coming to the impugned demand for the period post 01.07.2012, we observe from the show cause notice dated 03.09.2013 as issued for the post July 2007 amendment but the amended provisions have not been mentioned in the said show cause notice. It is utmost mandatory for the Department to first establish that the nature of the services subsequently and the respective charging provisions and the heavy burden is cast upon the department to prove that the demand is sustainable under the said charging provisions but as already observed above. The show cause notice has no proper and correct charging provisions. The show cause notice is nothing but a vague show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions which support our view." The said decision has been followed by this Tribunal in the case M/s Frisco Food Private Limited vs. Commissioner of Customs, Customs and Central Excise, Dehradun reported as 2021 (11) TMI 428-CESTAT NEW DELHI wherein it was held as follows:- "13. It is undisputed that the charging section under which the Department sought to demand service tax under reverse charge mechanism post 1st July, 2012 in this case is Section 66A read with Section 65(105)(zzb). These sections did not exist after 1 July 2012 and, therefore, we find that any reference to any other legal provisions which may have existed during the relevant period and which could have been invoked is irrelevant. It is a well-settled legal principle that the charging section in any taxing statute must be strictly construed and in case of any ambiguity it should be interpreted in favour of the assessee. 14. In the present case, the charging section which has been invoked for the period post 2012 does not exist at all and, therefore, there is no question of any ambiguity. Even if there is an ambiguity, it should go in favour of the assessee." In the present case also, the charging section wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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