TaxTMI 
TaxTMI 
2022 (9) TMI 1158
X X X X Extracts X X X X
X X X X Extracts X X X X
....even Crore fifty lakhs twenty five thousand six hundred and ninety one only) upon M/s N.M. Roof Designers Ltd., C-41, Tarun Marg, Tilak Nagar, Jaipur. However, benefit of reduced penalty on Service Tax demanded and payable upto 7.4.2011 (penalty of 25% on Service Tax demanded and payable upto 7.4.2011) as per proviso to Section 78 ibid, is available to the noticee subject to the condition that the Service Tax demanded and payable upto 7.4.2011 and the interest payable thereon under Section 75, is paid within thirty days from the date of communication of this order and further subject to the condition that the benefit of reduced penalty (25% of the Service Tax demanded and payable upto 7.4.2011) shall be available if the amount of penalty so determined has also been paid within the period of thirty days from the date of communication of this order. (iii) I also impose under Section 76 of the Finance Act, 1994 a penalty of Rs. 200/- per day for the period during which such failure continued or at the rate of 2% of the amount of Service Tax due per month (upto 9.5.2008), whichever is higher, till the date of actual payment of out....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d under section 73A 03,26,67,450/- Area Based Exemption - commercial & industrial construction service 03,28,81,459/- commercial & industrial construction service 37,03,70,480/- consulting engineer service 1,58,08,357/- supply of tangible goods service 2,32,800/- 5. The calculation of service tax liability has been arrived at in the following manner: "Commercial & Industrial Construction, Construction of Residential Complex Service and Works Contract Service Period Gross Amt. Value held not liable to service tax Net value on which ST Payable Rate of ST in % (including cesses) ST payable (in Rs.) 2007-08 till 10.05.2007 13718882 0 13718882 12.24 1679191 2007-08 11.5.2007 to 1.3.2008) 213385741 3666840 209718901 12.36 25921256 2008-09 till 23.2.2009) 178934824 13795124 165139700 12.36 20411267 2008-09 24.2.2009 to 31.3.2009) 58373884 682141 57691743 10.3 5942250 2009-10 206058228 2635448 203422780 10.3 20952546 2010-11 181914482 10177341 171737141 10.3 17688926 2011-12 202044819 800000 201244819 10.3 20728216 Total 113323652 Consulting Engineer services and Supply ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s in relation to construction activities, about Rs. 49.81 crores relates to construction of seven educational institutes. The service would be taxable only if the building is used for commerce or industry. In this connection reliance has been placed on the decision of the Tribunal in Chettinadu Constructions versus Commr. of C. Ex. (Service Tax), Madurai [2016 (46) S.T.R. 143 (Tri.-Chennai)] . Paragraph 13.2 of Board Circular dated 17.09.2004 also makes it clear that construction of buildings for institutions established solely for educational purposes would not be taxable under this category, being non- commercial in nature; (v) Likewise, an amount of Rs. 2,88,37,120/- received for construction of a hospital cannot be considered under the category of CICS; (vi) Rule 2A of the Service Tax (Determination of Value) Rules, 2006, requires that for any service which involves sale/transfer of some goods/materials also, the value of the goods/materials is to be excluded but the Commissioner has rejected this quantification simply on the ground that the appellant did not exercise the option prior to payment of service tax. Substantive benefits could not have been deni....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ated to non commercial entities like educational institutions, hospitals, religious bodies etc. Hence, there is no ground for invoking the extended time limit. The bonafides of the appellants is evident from the fact that they had taken registration for service tax in February, 2008, itself and had also paid some service tax as per their own bonafide understanding of the matter and had shown the remaining tax payable in their Balance Sheets; and (xiv) There is no ground for imposing any penalty also. In any case, this is a fit case for invoking Section 80 of the Finance Act to waive all penalties. 8. Dr. Radhe Tallo, learned authorised representative appearing for the department, however, supported the order passed by the Commissioner and submitted that it does not call for any interference in this appeal. 9. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 10. Admittedly for the construction works, the appellant was not only providing services but was also providing the material. The submission of learned counsel for the appellant is that such ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....articularly in view of the decision of the Tribunal in case of Ashish Ramesh Dasarwar (supra) wherein Tribunal has taken the view that demand for Service Tax is to be set aside if the Show Cause Notice proposed a classification different from WCS for construction activity." 15. A Division Bench of the Tribunal in M/s Gurjar Construction as Commissioner of Central Excise, Jaipur-II [2019 (5) TMI 717 - CESTAT, New Delhi] also examined such a position and observed that a demand made under a particular category cannot be sustained under a different category. 16. In view of the aforesaid decisions of the Tribunal, it has to be held that the Commissioner was not justified in confirming the demand of service tax under the category of CICS or CCS for the period post 01.06.2007. 17. Annexure-X to the show cause notice is in connection with 'consulting engineer' service and 'supply of tangible goods' service. 18. In regard to the 'consulting engineer' service, the submission of the learned counsel for the appellant is that it should have been confirmed on the amount of Rs. 1,19,96,452/- which was actually realized/received during period in issue and not on the bas....