TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 1398
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....vice recipient namely M/s Larsen & Toubro and others and they have neither taken registration under above-mentioned services nor have paid any service tax. The Department following the best judgment method, has demanded a service tax of Rs. 82,48,538/- under Section 73 of the Finance Act, 1994, penalty provisions under Section 76, 77 and 78 of the Finance Act has also been invoked in the show cause notice covering the period 2007-2008 to 2011-2012. The show cause notice has been adjudicated by the impugned order dated 09/01/2015 wherein the learned Commissioner has confirmed all the charges invoked in the show cause notice. The learned Commissioner has confirmed the service tax under the category of commercial or industrial construction service and works contract service. 2. The learned Advocate appearing for the appellant has contended that (i) the appellant is working as a sub-contractor not only for M/s Larsen & Toubro Ltd. but to various other construction companies which are engaged in the construction of road projects (ii) that all the receipts which are being taken by the Department from the financial year 2007-2008 to 2011-2012 are pertaining to the work relating to constr....
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....07 of M/s Garg Construction Co. Ludhiana, issued in favour of the appellant is for the construction of Road for Ludiana-Phagwara Road Project, involving complete earthwork The scope of work under the said work order was as below :- "earthwork complete including excavation, transportation, grading, watering and compaction work as per specification" (e) Another Work Order of M/s BSC - C&C JV dated 21/01/2008, issued in favour of the appellant was again for construction of Road in relation to Kurali to Kiratpur BOT project. The scope of work under the said order was as below :- "(i) cleaning and grubbing including removing of stumps and refilling, (ii) Providing laying and compacting earthwork in embankment/sub-grade for road, (iii) Providing laying and compacting Granular Sub-Base (GSB) for road, and (iv) Providing, laying and compacting Wet Mix Mecadam (WMM) (v) Another Work Order of M/s Shiv Shakti Construction dated 03/01/2009, was again issued in favour of the appellant for construction of Road in relation to Rohtak - Hisar project of NH-10. The scope of work under the said work order was as below :- "earth excavation, transportation, watering, laying and compactio....
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....g (xv) Transportation and laying of mixed bituminous concrete mixed with bituminous binder, rolling and compaction. 1.5 Thus on the basis of above contracts the learned Advocate has concluded only that the appellant was rendering construction service as a sub-contractor in relation to the national highways or expressways for the use of general public. 3. It has further been argued by the learned Advocate that the Adjudicating Authority himself is not very clear whether he wants to classify the above activities of the appellant under the category of commercial or industrial construction or under the work contract service because the service tax demand has been confirmed under both the categories of services. The learned Advocate has also taken us through the definitions given under both the categories of service namely commercial or industrial construction as well as work contract service. The text of the contents are reproduced below :- "1.9 The 'Commercial or Industrial Construction' under Section 65 (25b) of the Finance Act 1994 is defined as below :- "(25b) "commercial or industrial construction service" means - (i) construction of a new building or a civil structure or ....
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.... purposes of commerce or industry; or (c) construction of a new residential complex or a part thereof; or (d) completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to (b) and (c); or (e) turnkey projects including engineering, procurement and construction or commissioning (EPC) projects;" 4. The learned Advocate has argued that the services provided by them to their main contractors are certainly not classifiable under the work contract service primarily for two reasons, firstly, as work contracts in respect of roads are exempted from the scope of work contract service, secondly, under the work contract service transfer of property in goods involved in execution of such contract need to be there involving sale of goods since it can be seen from the various contracts adjudicated by them that they have only provided the labour services in execution of most of their works and thus they cannot be classified under the category of work contract service as defined under Section 65 of the Finance Act, 1994. With regard to classification under category of commercial or industrial construction, the learned Advocate has ta....
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....ng on the context, see State Wakf Board v. Abdul Aziz (A.I.R. 1968 Madras 79, 81 paragraphs 8 and 10, following and approving Nitai Charan Bagchi v. Suresh Chandra Paul (66 C.W.N. 767), Shyam Lal v. M. Shayamlal (A.I.R. 1933 All. 649) and 76 Corpus Juris Secundum 621. Assuming that the investments in shares and in lands do not form part of the undertakings but are different subject matters, even then these would be brought within the purview of the vesting by reason of the above expressions. In this connection reference may be made to 76 Corpus Juris Secundum at pages 620 and 621 where it is stated that the term "relate"‟ is also defined as meaning to bring into association or connection with. It has been clearly mentioned that "relating to" has been held to be equivalent to or synonymous with as to "concerning with" and "pertaining to". The expression "pertaining to" is an expression of expansion and not of contraction". 7. Thus, the learned Advocate has stated that they do not come under the scope of service tax under both the service tax categories under which the Adjudicating Authority has confirmed the demand. The learned Advocate has assailed the order-in- original wit....