TaxTMI 
TaxTMI 
2024 (8) TMI 1336
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....ice' for the period 31.05.2007 to 01.06.2007. For the period 01.06.2007 to 31.03.2011 also the Adjudicating Authority once again held that they do not fall under the category of 'Works Contract service' but the same would be taxable under the category of 'Construction of complex service'. Being aggrieved, the Appellant is before the Tribunal. 2. The Revenue has filed an Appeal against the impugned order passed by the Adjudicating Authority on the ground that Commissioner has erred in classifying the service under the category of 'Construction of complex service' instead of classifying the same under 'Works Contract service' after 01.06.2007. Both the Appeals have been taken up together for disposal. 3. Learned Consultant appearing on behalf of the Appellant submits that the Adjudicating Authority has traversed beyond the scope of SCN. While the SCN was issued for the period 01.06.2007 to 31.03.2011 demanding the Service Tax under the category of 'Works Contract Service', the Adjudicating Authority has confirmed the demand under the category of 'Construction of complex service'. 4. Learned Consultant relies on the following case laws:- a) P.K. Agarwalla Vs Commissioner of Centr....
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....tion of suppression cannot be sustained. Accordingly, he submits that the confirmed demand for the extended period is required to be set aside even on account of limitation. 8. In respect of the Appeal filed by the Revenue, he submits that the very Appeal filed by the Revenue would show that the Adjudicating Authority has erred in confirming the demand under the heading of 'Construction of complex service' instead of classifying under the category of 'Works Contract service'. He submits that the Department cannot rectify the error by filing such an Appeal before the Tribunal. He prays that the Department's Appeal may be dismissed. 9. Learned AR submits that the Adjudicating Authority has confirmed the demand under the category of 'Construction of complex service' while the SCN was issued under the category of 'Works Contract service'. Only because of such an Order, the Revenue has come up on Appeal before the Tribunal. He submits that the Tribunal should take into account that the Appellant himself has been claiming their services to be under the category of 'Works Contract service'. Therefore, the error committed by the Adjudicating Authority should now be rectified and the Trib....
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....estion before me is whether the service tax liability on the noticee shall be under the Works Contract service or under Construction of Residential Complex service. If the service tax liability were to be decided under the Works Contract service, the facts of the case shall have to be essentially in tune with what has been specified under sub-rule (3) of Rule 3 of Works Contract (Composition scheme for payment of Service Tax) Rules, 2007. In the instant case, the assessee has obtained registration for the provision of Works Contract service and Renting of Immovable Property service. The assessee also paid service tax in the year 2008 by selfassessment under Works Contract service. It is the proposal of the detecting officer in the show cause notice that such payment of service tax, albeit, belatedly, under Works Contract services denotes the assessee's option referred to in the Composition Scheme, enunciated under the Works Contract service. This proposition cannot anymore be held as good in as much as the said proposition is contrary to the clearly defined terms of the Composition Scheme. Therefore, the service rendered by the noticee has to be classified within the facts availabl....
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.... on account of Construction of Complex service. Hence, we take the view that the Appellant was not put to notice before the Adjudicating Authority had confirmed the demand under the category of 'Construction of Residential Complex service'. We find that in the case of M/s P.K. Agarwalla Vs CCE & ST, Kolkata (cited supra), the Kolkata Bench of this Tribunal has held as under:- "8. As in this case, Show Cause Notice proposes to demand of Service Tax under the "Mining Service" which the Adjudicating Authority has held that the demand is not sustainable under Section 65(105)(zzzy) of the Finance Act, 1994 which means that the activity undertaken by the Appellant does not fall under "Mining Services". But the Adjudicating Authority has gone beyond the scope of the Show Cause Notice by holding that the activity undertaken by the Appellants falls under Section 65(105)(zr) of the FA, 1994 which is beyond the scope of the Show Cause Notice. 9. In that circumstances, we hold that demand proposed in the Show Cause Notice under "Mining Service" and confirmed under "Cargo Handling Service". Therefore, the impugned order is not sustainable in the eyes of law which is beyond the scope of Show C....
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.... could be levied. This was also clarified by the CBEC in Circular No. 108/2/2009/ST dated 29.01.2009. The question before the Tribunal Principal Bench in the case of Krishna Homes Vs CCE Bhopal [2014 (34) STR 881(Tri-Del)] was whether this limitation on taxation prior to 01.07.2010 also extends to cases where such services were rendered not as "construction of complex services" but as "works contract services" and it was answered in affirmative. . . . (v) After 1-7-2010, Service Tax is chargeable under the head of 'construction of complex services' if it is service simpliciter and under 'works contract service' if it is a composite works contract unless it is for personal use of the service recipient. 8. The decision of the Principal bench of the Tribunal in the case of Krishna Homes (supra) was followed by various other benches including this Bench in several cases. We find no reason to take a different view in this case. Accordingly, we hold that no service tax could be charged from the appellant in respect of the services rendered by them as works contract services for the period 01.06.2007 to 01.07.2010." (Emphasis supplied) 17. We find that in respect of the f....