2018 (7) TMI 1798

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....inance Act, 1994. The appellants are procuring cement, steel, fittings and fixtures etc which are consumed in the providing of services. They are discharging duty of sales tax as well as service tax in the ratio 70% and 30% respectively on the total value of the property and are availing the benefit under Notification No. 12/2003 ST dated 20.06.2003. The Department contended that the items are consumed by them in the course of providing services and such consumption do not tantamount to sale, therefore, the benefit of the Notification is not available to them. Moreover they are discharging service tax only on 30% of the value without any documentary proof. Department has issued two show-cause notices to the appellants; one to Bangalore Unit....

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.... Court in 2017 (49) S.T.R. J26 (S.C) they have held that the decision in the case of Larsen & Toubro (supra) does not require a reconsideration and has affirmed the decision of this Bench. He further submitted that when there is no mechanism to tax lower portion of the service itself there can be no question on taxing the material element. Accordingly, no interest or penalty is payable and the entire demand is liable to be set aside. 3. The learned authorized representative of the Department has given a written parawise comments on the appeal and has relied upon Aggarwal Colour Advance Photo System 2011 (23) STR 608 (Tri.-LB) wherein it was held that the term „sold' in Notification No. 12/2003 ST has to be read with „sale' in....

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....ss amount charged for Works Contract less value of property and goods transported under exclusion of Works Contract. Going by the ratio of this case, both demands in the case of the appellants as far as they pertain to a period prior 01.06.2007 are liable to be set aside. 5. Coming to the demands for the month of June 2007, we find that the Larger Bench in the case of appellants themselves has held that mutual exclusivity of service tax and sales tax and the powers to tax assigned by the Constitution to the States and Centre respectively on sales and services was highlighted by the Apex Court in the Gujarat Ambuja Cements Ltd. case. The taxing powers of Centre and States assigned in the Constitution have been restated by the Apex Court i....