TaxTMI 
TaxTMI 
2022 (8) TMI 471
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....by M/s. Simplex Projects Limited (SPL) against Order-in-Original No. ST/Shillong/02/2011 dated 31.01.2011 passed by the Ld. Commissioner of Central Excise, Shillong, whereby he has confirmed demand of service tax of Rs.84,43,911 along with interest and penalty for the periods 2005-06 and 2008-09. In the same adjudication order, demand of service tax of Rs.25,58,761/- along with interest and penalty have been confirmed against M/s. National Buildings Construction Co. Ltd (NBCC) being Appeal No. ST-126/2011. Since both the Appeals are arising out of the above adjudication order dated 31.01.2011, the same are taken up for disposal by this common order. 2. The facts of the case in brief are that SPL has undertaken construction of accommodati....
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....r the category of 'Works Contract Service' which has not been proposed in the impugned SCN. 3. Shri Rajeev Kumar Agarwal, Ld.Advocate, appeared for SPL, whereas Shri K. Chowdhury and Shri S. Mukhopadhyay, Ld. A/Rs. Both appeared for the Revenue. None appeared for NBCC. 4. The Ld. Advocate appearing for SPL submitted that since the contract has been undertaken for construction of accommodation for Urban employed Youth and Women Vendors on behalf of the Ministry of Urban Development & Poverty Alleviation, Govt. of India, the same cannot be said to be for commercial purpose and, therefore, the classification under the category of Commercial or Industrial Construction is not correct. 4.1 He also submitted that since the scope of contra....
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.... described as 'Commercial Construction'. Copy of the said letter had also been sent to the Directorate General of Service Tax, Mumbai. On the basis of above, he also contested the demand on the ground of limitation in the absence of the willful suppression or fraud with intent to evade payment of service tax. On the same count, he contested the imposition of penalty. 5. The Ld. Authorized Representative appearing for the Revenue reiterated the findings made by the Ld. Commissioner in the impugned order and prayed that the appeals be rejected being devoid of any merit. 6. Heard both sides and perused the appeal records. 7. We find that the issue can be decided on the point of classification alone. It is noted that the contract is in....
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....le entry rendering the determination of tax liability to be contrary to the provisions of Section 73 of the Finance Act, 1994. It was submitted by the learned Counsel that further arguments should be contingent upon a decision on these two issues. 5. Learned Authorised Representative was of the opinion that the facts of the appellant are distinguishable from the facts relating the judgment delivered by the Hon'ble Supreme Court in re M/s. Larsen & Toubro Ltd. According to him, the non-taxability of works contract service prior to 1st June, 2007 was not contended before the adjudicating authority, who, therefore, had been denied the opportunity of ascertaining the nature of contract entered into by the appellant and the supply of go....
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.... Notification No. 01/2006, dated 1st March, 2006; the allowance of abatement is a clear demonstration of ascertainment that supply of goods did form a part of the contract. Therefore, we have no hesitation in accepting the said contracts in dispute to be composite contracts for supply of both goods and services. 8. We note that the findings of the adjudicating authority do accept that supply of goods were involved in the contracts and that he was merely sceptical that VAT liability had been discharged on the goods supplied in the contract; whether VAT liability was discharged on the goods or not is irrelevant in the light of the decision of the Hon'ble Supreme Court in re Larsen & Toubro and Ors. We, therefore, have to merely deter....
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....' 10. In view of this specific decision and the admitted claim of the appellant that they are not providers of 'commercial or industrial construction service' but of 'works contract service', no tax is liable on construction contracts executed prior to 1st June, 2007. 11. Insofar as demand for subsequent period till 30^th September, 2008 is concerned, it is seen that neither of the two show cause notices adduce to leviability of tax for rendering 'works contract service'. On the contrary, the submission of the appellant that they had been providing 'works contract service' had been rejected by the adjudicating authority. Therefore, even as the services rendered by them are taxable for the period from 1st June, 2007 to 30th....