TaxTMI 
TaxTMI 
2018 (7) TMI 1538
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....e Offices of the said Commissioenrate for the period 2006-07 to 2009-10 in Appeal No.53500/2014 and for the period 2006-07 to 2010-11 in Appeal No.52331 / 2016, it was observed that the appellants are rendering taxable services without discharging their liability qua the same. The adjudication in both the cases got initiated based on multiple show cause notices in each of the appeal as detailed below :- S. No . Issue and Category 1^st SCN dated 24.04.2012 2^nd SCN dated 19.12.2012 Period Amount (in Rs.) Period Amount (in Rs.) 1. 'Commercial or Industrial Construction Services' a) Construction of woman hostel for and on behalf of the Ministry of Women and Child Development, Government of India 2007-08 to 2010-11 3,74,12,76 1 2011- 2012 Rs.1,83,12,196 b) Construction of Civil Services Officers Institute 2. Maintenance and power back up expenses recovered from the clients in the form of fixed charges, operator charges, fuel consumption/running expenses 2006-07 to 2009-10 5,38,393 NA NA 3. Payment of servi....
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....truction of Civil Services Offices Institute are not commercial in nature. In furtherance of the decision of Hon'ble Supreme Court in the case of Commissioner, Kerala vs. L & T Ltd. - 2015 (39) STR 913 (SC), wherein it was held:- "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." And further observed in para "31. In the aforesaid judgment, it was held that the levy of service tax in Section 65(105)(g), (zzd), (zzh), (zzq) and (zzzh) is good enough to tax indivisible composite works contracts.", and in para held that "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 defines "taxable service" as "any service provided". Therefore, now it is settled that section 65 (105)(zzq) read with section 65(25b) of the Finance Act do not cover composite contract, it only covers contracts for services simpliciter, whe....
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....id by the appellant or not. Thus, in the impugned order the respective adjudicating authorities have tried to make out a new case against the appellants. The law has been settled that the adjudicating authority cannot go beyond the show cause notice, as it was held by Hon'ble Supreme Court in the case of CCE, Bhubaneswar-I vs. Chambdany Industries Ltd. - 2009 (9) SCC 466. In another decision of Precision Rubber Industries Pvt. Ltd. vs. CCE, Mumbai - 2016 (334) ELT 577, the Hon'ble Apex Court has held that no new case would have been set up or decided contrary to the show cause notices and that the Department is not allowed to travel beyond the show cause notice. Accordingly, we are of the opinion that the adjudicating authority has committed an error while confirming the impugned remand solely on the basis of lack of evidence qua discharging liability of VAT by the appellant when the same was not the issue in the show cause notices. Otherwise also once the adjudicating authority has held the supply of electricity as goods, there seems no reason for confirming the impugned demand. It was incumbent for the adjudicating authority below to give reasonable explanation about the impugned....
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....iency has already been made good qua Service Tax for the said periods, however with delay. As a result, interest on delayed payment thereupon in accordance of Section 73 (1) of Finance Act, 2004 read with Rule 14 of Cenvat Credit Rules, 2004 is recoverable from the appellants. The findings to said aspect are hereby accordingly upheld by us. (4) Inadmissible Cenvat Credit of Common Input Services on account of Appellant being providing Taxable and Exempted Services. 3.4 It is submitted by the appellant that there are number of input services also falling under Rule 6 (5) of Cenvat Credit Rules, 2004 (CCR) (as applicable at the relevant time) where 100% credit was allowed on the input services, which are used both for taxable and non-taxable purposes, the onus was upon the Department to come with the details of common input services for which the impugned Cenvat Credit has been disallowed. It is impressed upon, that there is no single finding to this aspect. The impugned order on this aspect is liable to be set aside on this simple scope. 3.4.1 Ld. DR has justified the order. 3.4.2 We are of the opinion that in terms of Rule 2 (1) (i) of CCR, input service means, any serv....
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....e paid after deducting it from sub-contractor. Ld. Counsel has relied upon Commissioner, Customs and Excise, Bhopal vs. State of Madhya Pradesh - 2015 (38) STR 954 (M.P.) to impress upon that when a supervisory staff is appointed by the State Government, who is not appointed to provide any service on behalf of the State Government to the contractor but to ensure that all the activities as agreed to be done by the contractor are carried out in the proper manner, such State Government while appointing such supervisor do not fall within the purview of providing service by a service provider. The ld. Counsel has also impressed upon a Circular No.190/9/2015-ST dated 15th December, 2015 to impress upon that for a person to be a service provider of manpower supply has to charge for supply of manpower, even if, the manpower remains ideal. Since it is not the case of the present appellant, as the people recruited by the appellants were under control of the contractor, the levy under this head is prayed to be set aside. 3.5.1 While rebutting these arguments, it is submitted by the ld. DR that the case law relied upon by the appellant is not applicable to the facts and circumstances of the....
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....en made liable to pay Service Tax under reverse charge mechanism as already held above, the activity of appellant is that of providing a taxable service in accordance of Section 65 B (44) of the Finance Act, 1994. The above said Rule of Service Tax which otherwise has a very limited application, is not applicable in the given circumstances. The activity apparently is not in the negative list i.e. in the entries of Section 66 D nor is the one of mega Notification No. 25/2012- ST dated 20th June, 2012. We are of the opinion that the activity has rightly been held taxable for the period w.e.f. 30th June, 2012. Resultantly, we do not find any infirmity in the order under challenge while confirming the levy on this ground. The case law as relied by appellant is opined to be not applicable to the present case as the manpower provider in the case relied upon by the appellant is a State Government, which is not true for the appellant irrespective he might be executing work for and on behalf of the Government. The order to this effect is upheld. 4. Finally coming to the issue of show cause notices being time barred for want of any such circumstance, which may entitle the Department to....