TaxTMI 
TaxTMI 
2021 (2) TMI 400
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....he Commissioner that has confirmed the demand of service tax. 2. The appellant is engaged in commercial construction and management, maintenance and repair. The first show cause notice dated October 13, 2011 for the period 2006-07 to 2010-11 was earlier adjudicated upon by an order dated March 20, 2013. This order was assailed by the Appellant by filing Service Tax Appeal bearing number 57966 of 2013. Initially an interim order dated September 21, 2015 was passed, requiring the Appellant to furnish a detailed chart on matters enumerated in paragraph 5 of the order. The appeal was ultimately allowed by order dated October 27, 2015. The impugned order was set aside and the Adjudicating Authority was directed to scrutinise the nature of each of the work covered in the show cause notice. The demands made on 'works contract' prior to June 1, 2007 were directed to be excluded. The Authority was also directed to re-examine whether any of the repairs and alteration contracts related to buildings that are being rented out to public offices so that the demand made on such contracts could also be excluded. The relevant portion of the order passed by the Tribunal is reproduced below: ....
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....on 65 (30a) of the Finance Act and taxable under section 65 (105) (zzzh); and (3) 'Management, maintenance or repair' service as defined under section 65 (64) of the Finance Act and taxable under section 65 (105) (zzg). 6. The Commissioner noted, in connection with the first show cause notice dated October 13, 2011, that the activities undertaken by the appellant could be divided into eight groups. These activities, including in the category of service and the taxability status, as mentioned in the show cause notice, are indicated in the following Tabular Form: S. No. Description of Work Done Category of Service Taxability status as mentioned in Show Cause Notice 1. Work related to Airports Commercial Construction Service The work related to airports are exempt under work contract/ commercial construction service 2. Work related to Autonomous bodies like, CSIR, National Cooperative Development Corporation, Delhi Jal Board Commercial Construction Service These organizations are autonomous bodies and also engaged in commercially exploiting their products/ research. 3. Work related to Govt. Buildings Police Headquarters, Moulana Az....
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....ontract Service". In other words, if the nature of activities carried out by the service provider is covered under Composite Indivisible Works Contracts, it would not be leviable for service tax levy before 01.06.2007. IGC, in their fresh submissions stated that, all the projects undertaken by them are not falling under any of the services mentioned in the classification alleged in the show cause notice, but in accordance with the definition were more appropriately classifiable under the "Works Contract Service" as it involves goods as well a labour and services and composite contracts for non-commercial purposes provided to Government were exempted, retrospectively by virtue of Section 98 of the Finance Act, 1994 and thereafter by the Mega Exemption Notification. (ii) Thus, for any contract to be covered under "Works Contract Service" as prescribed under Section 65 (105) (zzzza), following two conditions are required: (i) There must be transfer of property in goods involved in the execution of such contract and that property should be leviable to tax like VAT etc. (ii) The contract must be covered under the one of the five categories as prescrib....
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....ubmitted that it does not suffer from any illegality so as to call for any interference in this appeal. Learned Authorised Representative also submitted that the demand made under a particular category of service can always be confirmed under a different category, if it is found as a fact that the nature of service provided actually fall in that category of service. 14. The submissions advanced by the learned Consultant for the appellant and the learned Authorised Representative of the Department have been considered. 15. It is w.e.f. 1 June, 2007 that clause (zzzza) was inserted in section 65(105) of the Finance Act in relation to execution of "works contract". Taxable Service under Section 65(105)(zzzza) is defined as : "65(105)(zzzza) 'taxable service' means any service provided or to be provided to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. Explanation - For the purposes of this sub-clause, "works contract" means a contract wherein,- (i) transfer of property in goods involved in the execution of....
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....der the five heads in Section 65(105) noticed above would only be of service contracts simpliciter and not composite indivisible works contracts. xxxxxxxxxxxxxxxxxxxxxxxxxxxx 17.We find that the assessees are correct in their submission that a works contract is a separate species of contract distinct from contracts for services simpliciter recognized by the world of commerce and law as such, and has to be taxed separately as such." 17. The Commissioner has recorded a categorical find that each of the "works contract" undertaken by the appellant are not covered under the three services namely (i) commercial or industrial construction, (ii) construction of complex and (iii) management, maintenance or repair mentioned in the first show cause notice. The Commissioner further recorded a categorical finding that the activities undertaken by the appellant would be classifiable as "works contract" as they involved goods as well as labour services. 18. The Commissioner therefore, dropped the demand for the period prior June 1, 2007. But for the demands for the period w.e.f. June 1, 2007 the Commissioner proceeded to examine whether the particular work performed under....