Works Contract - Levy of service tax prior to 1.6.2007 - Whether service tax can be levied on indivisible works contracts prior to the introduction, on 1st June, 2007, of the Finance Act, 2007 which expressly makes such works contracts liable to service tax. - Held that:- assessees are correct in their submission that a works contract is a separate species of contract distinct from contracts for services simpliciter recognized by the world of commerce and law as such, and has to be taxed separately as such.

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 defines "taxable service" as "any service provided". All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract.

In fact, the speech made by the Hon'ble Finance Minister in moving the Bill to tax Composite Indivisible Works Contracts specifically stated:- "State Governments levy a tax on the transfer of property in goods involved in the execution of a works contract. The value of services in a works contract should attract service tax. Hence, I propose to levy service tax on services involved in the execution of a works contract. However, I also propose an optional composition scheme under which service tax will be levied at only 2 per cent of the total value of the works contract."

Absence of valuation rules to determine the correct value - The Delhi High Court judgment in G.D. Builders [2013 (11) TMI 1004 - DELHI HIGH COURT] unfortunately misread the Mahim Patram's judgment [2007 (2) TMI 73 - SUPREME COURT OF INDIA] of this Court to arrive at the conclusion that it was an authority for the proposition that a tax is leviable even if no rules are framed for assessment of such tax, which is wholly incorrect.

The Patna, Madras and Orissa High Courts have, in fact, either struck down machinery provisions or held machinery provisions to bring indivisible works contracts into the service tax net, as inadequate.

We need only state that in view of our finding that the said Finance Act lays down no charge or machinery to levy and assess service tax on indivisible composite works contracts, such argument must fail. This is also for the simple reason that there is no subterfuge in entering into composite works contracts containing elements both of transfer of property in goods as well as labour and services.

We have been informed by counsel for the revenue that several exemption notifications have been granted qua service tax "levied" by the 1994 Finance Act. We may only state that whichever judgments which are in appeal before us and have referred to and dealt with such notifications will have to be disregarded. Since the levy itself of service tax has been found to be non-existent, no question of any exemption would arise.

Works contract were not chargeable to service tax prior to 1.6.2007 - Decided in favor of assessee.

See:-Commissioner, Central Excise and Customs Versus M/s Larsen and Toubro Ltd. and others - 2015 (8) TMI 749 - SUPREME COURT
See also the old Articles:

Article Dated 6.1.2008 - Whether Service Tax circular no. 96/7/2007 as amended by circular no. 98/1/2008-ST is illegal to some extent?and

Article Dated 4.1.2007 - Service Tax on Turnkey Projects in the nature of work contracts ? Construction Services or Erection / installation and commissioning services

Works contract taxability clarified: indivisible works contracts not taxable under pre-enactment service tax framework due to absence of valuation rules The Finance Act, 1994's definition of 'taxable service' and the services enumerated in Section 65(105) refer to service contracts simpliciter and do not cover composite indivisible works contracts; absent express statutory charge and valuation/assessment machinery for the service element of such contracts prior to the legislative amendment, the Act did not permit levy of service tax on indivisible works contracts.