TaxTMI 
TaxTMI 
2022 (7) TMI 1184
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....s for various companies at exhibitions. Photographs of some stalls such as Korea Pavilion 2014 World Food of India, Mumbai, Bharat Electronics Stall, 2011, ABB Stall at ACREX, 2008, Bengaluru ABB Stall at Elecrama, 2012, Bengaluru were produced by the learned Counsel for the appellant in the synopsis. The appellant had classified its services under the head of erection, commissioning and installation service and commercial or industrial construction service prior to June 01, 2007 and it has classified them as "works contract service" after June 01, 2007 when Section 65(105)(zzzza) was introduced as a separate taxable service in the Finance Act, 1994. Show cause notices dated 20.04.2012, 12.12.2012, 2.5.2014, 23.4.2015, 5.5.2016 and 18.4.2018 were issued by the Revenue covering the period 2006-2007, 2016-2017. The first five show cause notices were disposed of by order in original dated 2.5.2017 which has been assailed in ST/50375/2018. Show cause notice dated 18.4.2018 was decided by order in original dated 24.11.2020 which is impugned in Appeal ST/50395/2021. All the show cause notices proposed classifying the appellant's service under the head "Pandal and Shamiana" services and r....
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....fforts have been made to reconcile the information provided by the appellant i.e., copies of ST-3 returns, details of turnover, service tax paid which are otherwise available with the Department also. He further submitted that till May 2007, the appellant classified its services under the category of "commercial or industrial construction service" and was discharging service tax liability after availing abatement of 67% under Notification No. 1/2006-ST dated 1.3.2006. From 1.6.2007 it has classified its services under the category of works contract service and discharged liability under works contract (Composition Scheme for payment of Service Tax) Rules, 2007 as applicable from time to tome and had filed returns with the Department which were accepted without any objection. 7. Notwithstanding the above submissions, learned Counsel for the appellant submits that it is undisputed that all these contracts involved both providing the service and using the materials in providing them. Such composite works contract can only be classified under the head "works contract service" as per the judgment of Supreme Court in Commissioner of Central Excise & Customs Vs. Larsen and Toubro Ltd. ....
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....of the respondents have been held by the learned Judges of the Court below to be. The several forms which such kinds of contracts can assume are set out in Hudson on Building Contracts, at p. 165. It is possible that the parties might enter into distinct and separate contracts, one for the transfer of materials for money consideration, and the other for payment of remuneration for services and for work done. In such a case, there are really two agreements, though there is a single instrument embodying them, and the power of the State to separate the agreement to sell, from the agreement to do work and render service and to impose a tax thereon cannot be questioned, and will stand untouched by the present judgment." (at page 427) 18. Similarly, in Kone Elevator India (P) Ltd. v. State of T.N. - (2014) 7 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 stipulati....
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....or works and satisfies the primary description of works contract. Once the characteristics or elements of works contract are satisfied in a contract then irrespective of additional obligations, such contract would be covered by the term "works contract". Nothing in Article 366(29-A)(b) limits the term "works contract" to contract for labour and service only. The learned Advocate General for Maharashtra was right in his submission that the term "works contract" cannot be confined to a contract to provide labour and services but is a contract for undertaking or bringing into existence some "works". We are also in agreement with the submission of Mr. K.N. Bhat that the term "works contract" in Article 366(29-A)(b) takes within its fold all genre of works contract and is not restricted to one specie of contract to 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'....