TaxTMI 
TaxTMI 
2020 (8) TMI 739
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....2) for labour work for spreading metal. A further contract vide agreement dated 18.04.2012 was also awarded to the appellants for job of supplying and spreading GSB on top of road, including compaction with roller, for which separate rates were specified for the work of GSB as well as for compaction. The appellant had discharged the service tax on the aforesaid activities under the three taxable service categories of works contract, construction service & formation service. The department seeks to deny such classification of services and contend that the services provided by appellant to M/s. Archelean Chemical Private Limited, are only classifiable under "site formation and clearance and excavation, earthmoving services" under section 65 (105) zzza of the Finance Act, 1994 as against the claim of appellant under 'works contract'. Accordingly the show cause notice dated 09.10.2015 was issued for the period 2010-11 to 2014-15 wherein the differential service tax demand was raised with propositions for equal penalty and other penalties under sections 76 & 77 and also applicable interest under Section 75. The show cause notice also invoked the larger period for making demand of servic....
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.... in the finding of the Learned Commissioner. His finding that appellant is only doing job of metal spreading and all other activities undertaken by them are ancillary thereto, which are preparing sites for activities undertaken for bunds is therefore a Site Formation Service, akin to defined activity of Site Excavation and formation services, is entirely misplaced against the very definition under the Act and clearly wrongly interpreting Works Contract Services. It is his submission that in fact the activities undertaken by the appellant relate to construction of bunds which are used for storage of water, as Roads for patrolling there. The activities therefore are not Site formation or clearance or excavation, but rightly works contract for construction of bunds. He submits that in almost all 'works contract' services, it is sale of certain materials along with service which generally is used for construction of 'immovable property', but in any case what is sold is the construction or repairing materials, being 'immovable property' and structure that is constructed is 'immovable property', which is not sold. In the present case also, what was sold/supplied was GSB metals/stones and....
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....bunds 4. In view of the activity carried out by the appellant it is clearly classifiable under the "Site Formation, Clearance, Excavation and Earthmoving Services", therefore, the Learned Commissioner has rightly demanded that differential service tax. In support, he placed reliance on the following judgments:- • 2017 (346) ELT 109 (All)- N K G Infrastructure Ltd Vs. Union of India (Para-8) • 2017 (48) STR J104 (SC) - N K G Infrastructure Ltd Vs. Commissioner • 2019 (30) GSTL J95 (SC) -Timken India Ltd Vs. Commissioner • 2020 (33) GSTL 187 (Chhattisgarh) - Ambalal Chauhan Vs. CCE., Raipur (Para- 10) • 2017 (3) GST 164 (Tri.-Chennai) -CMS (I) Operations & Maintenance Co P Ltd Vs. CCE., Puducherry (Para-7&8) • 2014 (34) STR 104 (Tri-Del) - CCE., Kanpur Vs. Agra Computers (Para-11 &12) • 2011 (23) STR 433 (SC) -Idea Mobile Communication Ltd Vs. CCE., Cochin (Para-18) • Circular No.B1/6/2005-TRU dated 27.07.2005 (Para-6) • Notification No.24/2012-ST dated 06.06.2012 • 2015 (40) STR 707 (Tri-Del)- Cellebrum Technologies Ltd Vs. CCE., Chandigarh (Para....
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....y GSB (had) on top of embankment and road uniformly to a thickness of 0.15 to 0.30 M including the compaction with 10 MT capacity rollers. This is also work of construction of road which by any stretch of imagination cannot be classified as "Site Formation Service and Clearance and Excavation and Demolition services". In this contract also there is a supply of goods which is spreaded on the road and compacting on the same therefore, it is composite contract of supply of service and goods, therefore clearly classifiable as Works Contract Service. Now we come to the definition of both the rival services. We find that to qualify a service as Works Contract Service under Section 65B(54)of the Act, it refers to the criteria : a) There should be transfer of property in goods. b) Such supply should be subjected to VAT. c) Construction should be of an immovable property. 5.2 In the present case since the appellant have admittedly supplied the material there is a transfer of property of the said material. The overall construction job subjected to payment of VAT which was paid by their service recipient under Reverse Charge mechanism. The appellant in this....
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....earance, Excavation and Earth Moving and demolishing Services was set aside and appeal was allowed. We are in the agreement with the view taken by the Commissioner (Appeals). This order has not been appealed against before any forum by the Revenue. Hence, it has attained finality. As regard the judgment cited by both the sides, we find that none of the judgment is directly on the issue in hand particularly in the fact of the present case, therefore, we are not discussing those judgments. 7. As regard the limitation issue argued by the Learned Counsel, we find that there is no dispute in the fact that this is not a case where the appellant have not paid the Service tax at all. The appellant on the same services had been discharging the service tax regularly and they were filing the periodical returns in ST-3 form therefore, there is absolutely no suppression of facts on the part of the appellant. Moreover, the Learned Commissioner (Appeals) also passed order in their favour, therefore the appellant had a bona fide belief regarding claim of the classification of the service under Works Contract, for this reason also no mala fide can be attributed to the appellant. 8....
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....ection of Mines/queries, required NOCs regarding Environmental & royalty and the government formalities regarding mines. Excavate a trench of size 450mm X 450mm along the outer edge of bund for formation of toe wall. Fill the trench with 450 mm. x 230 mm. stone above ground level. Construct the pitching above toe line using stones. Provide key stones at regular intervals The thickness of spreading at any case shall not be less than 230 mm. Scanned With CamScanner CL R.2.Pine2 Document 2ARCHEAN CHEMICAL INDUSTRIES PVT. LTD "Anandam", D/4, Opp. Lions Club, Shaktinagar Gandhidham 370 201 Kutch, Gujarat. Ph: 02836-234259/234158/233841 Fax: 02836-233400 E -mail: [email protected]/archean [email protected] 5. Rate i. For Metal Spreading & Toe Wall Point Rate Per M Rate Per M Rate Per Mts. At '0' point 541/- 135.25 330/- >0-5 5501- 137.25 346.55 >5-10 560/- 140.00 363.10 >10-15 570/- 142.25 379.66 >15-20 580/- 145.00 396.22 >20-25 5901- 147.50 412.70 99 6. 7. 8. ii. For Labour work for Spreading Metal: Rs. 60/- per M³ Rs. 15/- per m² For Earth Filling at cuts in bunds & dressing of bund slope the rate is as under....
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....group.com/archean [email protected] Security Deposit: 5% will be deducted from each bill as security deposit against performance which will be released after six months of completion of job on submission of final bill. Other facilities: The Contractor shall make suitable arrangement for drinking water, food and accommodation for their employees/Labours engaged, in their own cost. Employees/Labours/Machine Approval: Approval of Employees/ Labours / Machines to go to rann area are to be obtained by the Contractor. if required by BSF/Army. The company reserves the right to restrict the entry of any workers working under you inside the company premise. You will have to comply and follow the rules and regulation of government governing the construction contract and finish all necessary information and document to the company as required by the law. Forfeiture of Security Deposit/Termination of Contract: If the Contractor fails to complete the work within the specified period or the work done is not to the entire satisfaction of the company the company reserves the right to terminate the contract and forfeit the security deposit a....
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....ICAL INDUSTRIES PVT. LTD "Anandam", D/4, Opp. Lions Club, Shaktinagar Gandhidham 370 201 Kutch, Gujarat. Ph: 02836-234259/234158/233841 Fax: 02836-233-400 E- mail: [email protected]/archean [email protected] General Terms: a) In case the materials are issued by the company, the you have to take the delivery from the company stores and account for all the materiais. b) Since the water table is very high at the working site, the contractor shall arrange the pump required for bailing out water from trenches. c) If you wish to bring the earth from out side for the construction of bund, you have to make your own arrangement for land required for procurement of earth. d) Selection and location of site for carrying out work is to decided as per company requirement /priority e) Any approach roads/pathways required to carry the earth movingmachinery/ vehicles to site shall be made by you at your own cost. The company reserves the right to change /modify any of the work entrusted to you, any additional cost incurred by you for such modification /changes will be reimbursed to you as may be mutually agreed. g) Any third party l....