TaxTMI 
TaxTMI 
2023 (7) TMI 434
X X X X Extracts X X X X
X X X X Extracts X X X X
....arded miscellaneous civil construction works by L&T by work-orders which involved supply of goods and for fixing and finishing of tiles/granite/marbles. According to the appellant, as these work orders awarded by L&T comprise transfer of material as well as rendition of services, the same being composite in nature would be 'works contract services' and the appellant could pay service tax after availing the benefit of the composition scheme issued by a notification dated 22.05.2007. The appellant obtained service tax registration on 26.10.2012 for payment of service tax and paid service tax amounting to Rs. 4,62,212/- with interest amounting to Rs. 2,49,147/- after availing the benefit of the composition scheme. 3. An audit of L&T was conducted from 08.05.2009 to 12.05.2009 for the financial years 2007-08 to 2008-09. During the course of audit, it was observed that the appellant had rendered various construction activities to L&T which would be classifiable as 'commercial or industrial construction [CICS] and 'works contract services' [WCS]. 4. A show cause notice dated 23.10.2012 was issued to the appellant proposing service tax demand of Rs. 16,72,645/- with interest under s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in question is unable to throw light of any linkage between the amount received therein vis-à-vis the actual receipts shown in the balance Sheets, their effort of categorization of services under Work Contract Service cannot be allowed. Besides, the appellant have remained silent on the issue whether prior to the introduction of the composite scheme they were not engaged in similar activities specially when the status contract is defined as a running contract and it can be a part of the major work for which the work could have been started much earlier. The other work orders submitted by the party again do not justify as to how these are connected to Works Contract Service. Hence, the finding of the impugned order that the appellants were rendering taxable services of 'Commercial or Industrial Construction Service' seems to be correct and as such the question of classifying the said service under any other head does not arise. I therefore do not feel any intervene in the finding of the impugned order with regard to classification." 8. Shri A.K. Batra, learned counsel for the appellant assisted by Shri Akashdeep made the following submissions: (i) The department ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ax amounting to Rs. 1,42,372/-, education cess amounting to Rs. 2,847/- and secondary education cess amounting to Rs. 1,424/- (collectively amounting to Rs. 1,46,643/- as per detail in Annexure 'A' attached." 13. It is, therefore, clear that the demand was proposed without specifying a particular taxable category in terms of section 65(105) of the Finance Act. The confirmation of demand on the basis of the aforesaid show cause notice, therefore, is not justified. In this connection reliance can be placed on the decision of the Delhi High Court in Principal Commissioner, Service Tax, Delhi vs. Shubham Electricals [2016 (42) S.T.R. J312 (Del.)], wherein it was held: "6. As rightly pointed out by the CESTAT, the Department itself is unclear whether the service performed by the respondent was "management, maintenance or repair service" or "Erection, Installation and Commissioning Services". This vagueness goes to root of the matter. Therefore, the decision in Commissioner of Service Tax v. ITC Ltd. - 2014 (36) S.T.R. 481 (Del.) relied upon by Mr. Rahul Kaushik, learned counsel for the Department, is distinguishable on facts. Although, Mr. Kaushik referred to certain portion....
X X X X Extracts X X X X
X X X X Extracts X X X X
....argument only as to the rejection of the claim of the appellant for payment of Service Tax under the composition scheme. It is argued by him that the appellant ought to have been allowed to discharge Service Tax under the composition scheme for Works Contract and that the non-intimation to the Department prior to payment of Service Tax has to be considered as a procedural infraction. 7.1 In paragraph 37 of the impugned order, the Adjudicating Authority has noted that the appellant is not eligible to avail the composition scheme as the appellant has not exercised the option to avail the composition scheme by intimating to the Department. The above issue stands covered by the decisions of the Tribunal in the cases of M/s. Vaishno Associates (supra) as well as M/s. Kunnel Engineers and Contractors (supra). We therefore have no hesitation to hold that the non-intimation of availing the composition scheme is only a condonable lapse and that appellant has to be allowed to pay Service Tax under the composition scheme for Works Contract Services. 7.2 We make it clear that we do not interfere with the taxable value mentioned in the Annexure to the Show Cause Notice dated 20-10-2009....