TaxTMI 
TaxTMI 
2020 (8) TMI 739
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....de 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 service tax. The original adjudicating authority namely the Commiss....
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....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 not the 'bunds', but with GSB metals/stones and using other materials and ....
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....ation, 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-9) * 2017 (52) STR 291 (Tri-Del)- Ramesh Construction Company Vs. CCE., Raipur (Para-5) * Notification No. 30/2012-ST dated 20.06.2012 5. We have heard both the sides and perused the records. The issue to be decided by us....
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....earance 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 regard submitted various documents which shows that the job undertaken by the appellant has suffered VAT liability. The overall work is of construction of bunds which falls under Industrial & Commercial Construction Service. The said construction is undisputedly of an immovable property. With this....