TaxTMI 
TaxTMI 
2021 (3) TMI 519
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....order was passed by the learned Commissioner. 4. The demands which were raised in the show cause notice and confirmed in the order-in-original were as follows :- Sl. No. Category of Demand raised as per SCN dated 19/05/14 for F/Y 12-13 Nature of work Para No. Of SCN 19-24 Demand raised as per SCN Demand confirmed OIO dated 20/03/15 (Page 35-41) Amount Para No. Of OIO 1 2 3 4 5 6 7 1 Commercial Construction Commercial Construction 10(i) 3,11,604/- 3,11,604/- 16 2 Cargo Handling Supply of goods 10(ii) 42,81,968/- 42,81,968/- 18 3 Cargo Handling Transportation of goods 10(ii) 97,493/- 97,493/- 18 4 Supply of Tangible Goods Supply of Tangible Goods 10(iii) 5,58,614/- 5,58,614/- 17 Total 52,49,679/- 52,49,679/- +Interest+ Penalty u/s 76 5. Learned Counsel for the appellant submits that for an earlier period in Service Tax Appeal No. 53280 of 2016 this Bench had passed Final order No. 50287 of 2019 dated 13 February 2019. In that order there were demands under :- (i) ....
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.... amounting to Rs. 3,11,604/-". 8. Learned Counsel would submit that from the above, it is very clear that what they had rendered was "works contract service" which, as per the judgment of the Hon'ble Supreme Court in the case of Commissioner of Central Excise and Customs, Kerala versus Larsen & Toubro Limited - 2015 (39) S.T.R. 913 (S.C.) cannot be charged to service tax under any other head including CICS. In fact, this point was raised by them before the learned Commissioner and it has been explained that they had discharged service tax under works contract service. However, this contention was not accepted by the learned Commissioner on the ground that they had not fulfilled the conditions laid down in Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. Relevant paras 16.01, 16.02 of the impugned order were as follows : "16.01 It is seen that a demand of Rs. 3,11,604/- has been raised under Commercial or Industrial Construction Service (including value of goods/material provided by the recipients of service). The services relate to providing and laying PCC in foundation for M/s Enercon India Ltd. and Construction of boundary wall of solar plan....
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....is no doubt that their contract was in the nature of works contract and it involved both supply of goods and rendition of services. Both the show cause notice and the order-in-original acknowledged this. However, the demand was confirmed under "commercial and industrial construction service" which is not sustainable and, therefore, this demand needs to be set aside. 10. As far as the demand of service tax under cargo handling service is concerned, it is on account of two alleged services ; (i) supply of raw material like river sand and crusher grit to M/s Enercom India Ltd. ; (ii) transportation of 40mm size limestone from RSMMs Sanu Mines to M/s GLPL, Barmer. The nature of these two contracts is correctly indicated in para 10 (ii) of the show cause notice, as above. Having stated that one contract was for supply of river sand and another is for transportation of limestone the demand has nevertheless been made under "cargo handling services" and confirmed in the impugned order. Identical demand for the earlier period was set aside by this Bench in the aforesaid final order No. 50287 of 2019 dated 13 February 2019 paras 12 and 13 of which are reproduced below :- "12. The....
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....e not contesting the demand under this head. 13. Learned Counsel also contested the imposition of the penalty on them. 14. Learned Departmental Representative reiterates the findings of the Original Authority. 15. We have carefully considered the records of the case and submissions made by both sides. 16. There is no dispute on the facts of the case. The demand under "Commercial and Industrial Construction Service" was made on an activity which admittedly involved both supply of goods and rendering services. In fact, an abatement towards the cost of goods was also given in the show cause notice and the impugned order. It has now been well settled by the Hon'ble Supreme Court in the case of Larsen & Toubro Ltd. (supra) that "works contract service" is separate specie of contract known to commerce and it cannot be equated either with a contract for sale of goods or a contract for supply of services simplicitor. Service tax can only be demanded on Works Contract services after the introduction of a charge on works contract service and not under any other head either before the introduction of the service or thereafter. Learned Commissioner records in his order that the app....