TaxTMI 
TaxTMI 
2022 (7) TMI 1182
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....zza) of the Finance Act, 1994 for the period from October 2010 to June 2012 against the assessee and order to recover the same under proviso to Section 73 (1) of the Finance Act, 1994. (ii) I order to recover the interest on the confirm demand of Service Tax of Rs. 2,54,64,515/- (Rupees Two Crore Fifty Four Lakh Sixty Four Thousand Five Hundred Fifteen only) (as mentioned at (i) above) at applicable rate form the assessee under provisions of Section 75 of the Finance Act, 1994. (iii) I impose a penalty of Rs. 10,000/- (Rupees Ten Thousand only) on the assessee for not filing the prescribed Service Tax Returns within the prescribed time limit, in a prescribed manner, under the provisions of Section 77 of the Finance Act, 1994 and (iv) I impose a penalty of Rs. Rs. 2,54,64,515/- including Edu. Cess & SHE Cess (Rupees Two Crore Fifty Four Lakh Sixty Four Thousand Five Hundred Fifteen only) on the assessee under Section 78 of the Finance Act, 1994. However, the assessee have an option to deposit the 25% amount of the said penalty, if the Service Tax and the interest payable alongwith penalty thereon are paid by them within 30 days from the communication of th....
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.... it. (b) The service rendered by the appellant is not WCS because there is no transfer of property in goods in the execution of the contract. (c) The option to pay service tax either under the CICS or under WCS is with the appellant and it can choose whatever is beneficial to it. (d) The demand of service tax has been wrongly computed by not considering clause (ii) of Rule 2A of Service Tax Valuation rules by the Commissioner. (e) The demand is time barred as it has been filing the returns periodically before the Revenue. The penalties under Section 77 and 78 are not imposable. 6. Learned Counsel prayed that the appeal may be allowed and the impugned order may be set aside with consequential relief. 7. Learned Authorized Representative of the Revenue supports the impugned order and submits that it calls for no interference. 8. We have considered the submissions on both sides and perused the records. 9. The undisputed facts of the case are that the appellant had rendered services which involved utilization of materials and had charged a gross amount from its clients without vivisecting the cost of goods used and the charges for its ser....
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.... SCC 1 = 2014 (34) S.T.R. 641 (S.C.) = 2014 (304) E.L.T. 3 (S.C.), this Court held :- "Coming to the stand and stance of the State of Haryana, as put forth by Mr. Mishra, the same suffers from two basic fallacies, first, the supply and installation of lift treating it as a contract for sale on the basis of the overwhelming component test, because there is a stipulation in the contract that the customer is obliged to undertake the work of civil construction and the bulk of the material used in construction belongs to the manufacturer, is not correct, as the subsequent discussion would show; and second, the Notification dated 17-5-2010 issued by the Government of Haryana, Excise and Taxation Department, whereby certain rules of the Haryana Value Added Tax Rules, 2003 have been amended and a table has been annexed providing for "Percentages for Works Contract and Job Works" under the heading "Labour, service and other like charges as percentage of total value of the contract" specifying 15% for fabrication and installation of elevators (lifts) and escalators, is self-contradictory, for once it is treated as a composite contract invoking labour and service, as a natural coroll....
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....provide for labour and services alone. Parliament had all genre of works contract in view when clause (29-A) was inserted in Article 366." (at para 72) 42. It remains to consider the argument of Shri Radhakrishnan that post 1994 all indivisible works contracts would be contrary to public policy, being hit by Section 23 of the Indian Contract Act, and hit by Mcdowell's case. 43. We need only state that in view of our finding that the said Finance Act lays down no charge or machinery to levy and assess service tax on indivisible composite works contracts, such argument must fail. This is also for the simple reason that there is no subterfuge in entering into composite works contracts containing elements both of transfer of property in goods as well as labour and services. 44. We have been informed by counsel for the revenue that several exemption notifications have been granted qua service tax "levied" by the 1994 Finance Act. We may only state that whichever judgments which are in appeal before us and have referred to and dealt with such notifications will have to be disregarded. Since the levy itself of service tax has been found to be non-existent, no qu....
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....s earned is classified under one of the heads such as "income from salary", "income from business or profession", "income from house property", etc. It is not open for any assessee to classify income earned under one head as an income under another head. For instance a salary can only be classified as an income from salary and not as income from profession or business to claim deductions. Therefore, the submission of the learned Counsel for the appellant that it is open for the appellant to classify its services under any head it pleases is not correct. We have already held above that given the factual matrix, the services rendered by the appellant were correctly classifiable under WCS. 12. Learned Counsel for the appellant has also submitted that even if the demand is made classifying its services under WCS, the calculation by the learned Commissioner is not correct. Further, he submitted that the Works Contract (Composition Scheme for the payment of Service Tax) /Rules, 2007 is also available to it. As has been observed in the audit report and in the impugned order, the Service Tax Composition Scheme, requires the assessee to make an option which it had not done. 13. It has....
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....raised within an extended period of limitation of 5 years. The observation in the show cause notice justifying invocation of the extended period of limitation is as follows :- "In the instant case, the assessee failed to discharge their service tax liability as required by them under the said provisions in as much as, the assessee had not disclosed the material facts to the department to the extent of providing the taxable service under the category of "works Contract service" as defined under Section 65 (105) (zzzza) of the Finance Act, 1994 during the period from October, 2010 to June, 2012 thus they have willfully not deposited the applicable service tax and deliberately & knowingly suppressed the facts by not filing the prescribed Service Tax Returns within the prescribed time limit, in a prescribed manner. Thus, it appears that they did so with intent to evade payment of Service Tax. Therefore, extended period of limitation appears to be invokable in this case under the proviso to Sub-section (1) of Section 73 of the Finance Act, 1994, as amended. The assessee also appears liable to pay interest at applicable rates under Section 75 of the Act ibid". 17. We are unab....