TaxTMI 
TaxTMI 
2019 (2) TMI 84
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of law, the Commissioner of Central Excise, Customs & Service Tax (Appeals), Coimbatore, vide the impugned Order dated 30.01.2012 confirmed the service tax under 'Construction of Residential Complex Service'. 1.2 It is the case of the Revenue that the Commissioner (Appeals) has failed to take into account the fact that taxable value adopted in respect of the land owner does not represent the true value of the provision of services; that the assessment made was not in consonance with the legal provisions contained in Section 67 of the Finance Act, 1994 read with Service Tax (Determination of Value), Rules 2006. Aggrieved by the same, the Revenue has come in appeal before this forum. 1.3 The Commissioner (Appeals) vide the impugned Order appropriated the payments made by the appellant and confirmed a demand of Rs. 36,46,089/-. It is the case of the appellant that the amount has been arrived at without deducting the amount of UDS portion pertaining to each project. Hence, the appellant is in appeal before this forum. 2. Today when the matter came up for hearing, Ld. ADC (AR) Shri. A. Cletus appeared on behalf of the Revenue and Ld. Advocate Ms. Radhika Chandra Sekhar appear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be classified under commercial or industrial construction service, or construction of complex service. To put in another way, to merit being classified as CICS or CCS, the service provider concerned will be rendering only service simpliciter without any other element in them namely without any material or goods supply involved. That is definitely not the case in the facts of these appeals. The activities of the appellants will therefore continue to be in the nature of composite works contract services and hence even after 1.6.2007 for the periods disputed in these appeals they cannot be brought within the fold of commercial or industrial construction service or construction of complex service as proposed in the show cause notices and confirmed in the impugned orders. 7.8 On the contrary, being composite works contracts, they will necessarily fall within the ambit of works contract service as defined under section 65(105)(zzzza) ibid. It is possibly with this intent in mind that the lawmakers have included in the definition of works contract, erection and commissioning service, commercial or industrial construction service, construction of complex service and in addition turnkey ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-6-2007 when the new service "Works Contract service" was made effective, classification of aforesaid services would undergo a change in case of long term contracts even though part of the service was classified under the respective taxable service prior to 1-6-2007. This is because "works contract" describes the nature of the activity more specifically and, therefore, as per the provisions of Section 65A of the Finance Act, 1994, it would be the appropriate classification for the part of the service provided after that date.' 7.12 Thus, for example, while construction of a new residential complex as a service simpliciter would find a place under section 65(105)(30b) of the Act, the same activity as a composite works contract will require to be brought under section 65(105)(zzzza) Explanation (c). For both these categories for the definition of residential complex, the definition given in section 65(105)(91a) will have to be adopted as discussed above will have to be taken into account. 7.13 We find sustenance in arriving at this conclusion by a number of decisions of the Tribunal in which it has held as under:- a. In the case of Commissioner, Service Tax, New Delhi Vs. Sw....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the appellant are nothing but works contracts, for the period in question, entire case of the Revenue in the show-cause notice stands demolished by the Apex Court in the case of Larsen & Toubro Ltd. (supra). In the said judgment, their Lordships have very categorically laid down the law that the works contract cannot be vivisected for the confirmation of demand under various other services. On this ground itself, the entire demand confirmed by the adjudicating authority is liable to be set aside and we do so.' c. In the case of URC Construction (P) Ltd. Vs. Commissioner of Central Excise, Salem - 2017 (50) STR 147, the Tribunal in paragraphs 9, 10 and 11 has held as under:- '9. The Hon'ble Supreme Court in re Larsen & Toubro & Ors. has decided thus '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". All the services referred to in the said sub-clauses are service contracts simplicite....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lied upon by the Ld. Counsel. So ordered. 5.2 The Ld. Counsel has been at pains to point out that on-going projects which were only in the nature of works contract prior to 01.04.2007 cannot be brought under different category of Construction Services and CICS subsequently. We find merit in his arguments. The SCN has proposed demand of service tax liability only under these two categories and not under Works Contract service. The demand confirmed in the impugned order under these categories namely under construction service for the period 10.09.2004 to 16.06.2005 under CICS for the period 16.06.2005 to 30.09.2008 cannot also sustain and are therefore set aside. So ordered 5.3 For the period 01.04.2008 to 30.09.2008, the demand confirmed is Rs. 26,88,611/-. We note that the appellant has not contested the liability under works contract for this period. The only argument brought forth by the Ld. Counsel is that they have discharged an amount of around Rs. 82 lakhs under this category after the visit of the departmental officers and therefore an amount of Rs. 36,88,611/- demanded in the impugned order should be considered as having been discharged. We find merit in h....