2022 (9) TMI 390

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....sing out of the order whether the service provided by the appellant is Works Contract Service or Commercial or Industrial Construction Service, if the service is of WCS whether the demand raised under the head of Commercial or Industrial Construction Service will survive or otherwise and whether the demand of service tax on works contract till June 2007 was payable or otherwise. 2. Shri Bishan R Shah, Learned Chartered Accountant along with Ms. Kiran Tahelani, Learned Chartered Accountant appearing on behalf of the appellant submits that there is no doubt that their contract is a composite contract which includes both material and service. The said fact has been confirmed in the SCN itself. Therefore, the demand under the Commercial or I....

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....He also referred to explanation 3 to sub section (1) of section 67 which removes any doubt clarifying that the gross amount charged for the taxable service shall include the amount received towards the taxable service before, during or after provision of such service. Therefore there is no amount charged in respect of the goods which are supplied by the service recipient. Therefore, the value of goods is not to be included in the service. Accordingly, as per the settled position the appellant is otherwise entitled for the abatement to the extent of 67 % of the gross value of the service. He placed reliance on the Supreme court judgment in the case of M/s Jay Engineers Vs. Commissioner of Service Tax, Ahmedabad - 2019 (5) TMI 156- CESTAT Ahm....

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....g consequential to the demand of service tax is not sustainable. Without prejudice he submits that the penalties were imposed under section 76 and 78 are mutually exclusive and cannot be imposed as held in the following judgments: • CCE Vs. Silver Oak Gardens - 2008 (13 ) STT 64 (CESTAT - SMB) • Remac Marketing - 2009 (18) STT 306 CESTAT • Pannu Property Dealer - 2009 (20) STR STT 78 CESTAT • Grewal Trading Co. - 2009 (23) STT 384 (CESTAT) • CCE Chandigarh Vs. City Motors - 2011 (30) STT 191 ( Punj. ) 2.4 He further submits that Section 78 of the Finance Act, 2008 inserted with effect from 10.05.2008 that if the penalty payable under section 78, the provision of section 76 ....

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.... the demand prior to 01.06.2007 is clearly unsustainable as held by the Apex Court. 4.1 As regard the demand under Commercial or Industrial Construction Service post 01.06.2207 we find that the SCN as well as the adjudication order was passed classifying the service under Commercial or Industrial Construction Service whereas the service of the appellant is classified under works contract service. On this fact the demand raised under Commercial or Industrial Construction Service will not sustain being proposed and confirmed under the wrong classification whereas the services are correctly classifiable under works contract service. On the issue where duty demand raised under the wrong classification this tribunal in the case of Real Value ....