TaxTMI 
TaxTMI 
2025 (6) TMI 1361
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...., Erection, Commissioning or Installation Service, Commercial or Industrial Construction Services, Works Contract Service, Management, Maintenance or Repair Service and Goods Transport Agency Service. Investigation carried out by the department reveals that the Respondent has entered into composite contracts with various parties for design, drawing and detailed engineering construction (Civil Work), procurement, supply, erection, testing, trial run and commissioning of Effluent Treatment Plant, Sewage Plants for lump sum amount, but has not paid service tax towards such Turnkey projects entered prior to 01.06.2007 and executed up to 31.03.2011. 3. The Department was of the view that the services rendered by the Respondent prior to 01.06.2007 would be classifiable under "Erection, Commissioning or Installation Services" and "Commercial or Industrial Construction Service". It also appeared that the Respondent did not pay service tax in respect of the contracts entered before 01.06.2007 even though necessary break-up had been incorporated in the said contracts. Upon the Respondent submitting the details, the department quantified service tax based on such details furnished by th....
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....s and therefore the demand has been correctly made on the taxable activities. c) The assessee itself had admitted that the services provided by it are taxable under Section 65(105) (zzzza) w.e.f 01-06-2007 d) The adjudicating authority framing only one issue whether the turnkey contracts were taxable as "commercial or industrial construction service" and "erection, commissioning and installation service" was hyper technical and the adjudicating authority ought to have framed the issue as "whether the levy of service tax attracted on the impugned services provided as per the contract entered prior to 01.06.2007 by the assessee which came into effect from 01.06.2007". e) Reliance is placed on the master circular dated 10th March 2017 which stipulated that cases in which the Department has gone in appeal to the appropriate authority, the adjudication is to be kept in abeyance. Reliance is placed on the decisions in Kriti Shrimankar v The Commissioner, CGST & CE, 2018 (7) TMI 627, Paper Products ltd v CCE, 1999 (8) TMI- 70- SC, CCE & ST, Rohtak v Merio Panel Product, 2022 (12) TMI 453-SC 6. Shri. P. K. Sahu, Advocate, appeared and argued for the Respondent. Ld. Counsel made the ....
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....dered his findings placing reliance on the decision of the Honourable Apex Court in Commissioner of Central Excise and Customs, Kerala vs. M/s. Larsen & Toubro Ltd, 2015 (39)STR 913 (SC), quoting extensively from the said decision, referring to Board's Clarification in DOF No.334/4/2006-TRU dated 28-02-2006, Board's Circular 128/10/2010 dated 24-08-2010 as well as the Tribunal decisions in Commissioner, Service Tax, New Delhi v. Swadeshi Construction Company-2018-TIOL-1096-CESTAT-DEL and Skyway Infra Projects Pvt Ltd v CST, Mumbai - -2018-TIOL-360-CESTAT-MUM, went on to hold as under: " 4.24. It is thus clear that only those contracts which are services simpliciter, not involving supply of materials, will be subject to levy of service tax under Commercial or Industrial Construction Services and Erection, Commissioning and installation services prior to 01.06.2007 and thereafter. This is also clear from the fact that there is no change in the definition of Commercial or Industrial Construction Services and Erection, Commissioning and installation services even after 01-06-2007 while incorporating these services within the scope of works contract service. 4.25. Summing up th....
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.... land. Another Constitution Bench of this Court in Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries [(2008) 13 SCC 1 = 2008 (231) E.L.T. 22 (S.C.) = 2008 taxmann.com 1649 (SC)] drew a line in the sand with regard to any future confusion on this point, in definitive terms and held as follows : "7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the Court. it is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law." (emphasis suppli....
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....lenging the Department Circular directing that the show cause notices, adjudication of which was kept in call book pursuant to the earlier Circulars shall be taken out and be adjudicated in accordance with law. The assesee's challenge therein was negatived and it was held that the adjudicating authority is to proceed for adjudication. The decision in paper products relied upon by the appellant only states that the Department is bound by its circular and is precluded from challenging the correctness of the said circular even on the ground of the same being inconsistent with the statutory provision. The decision in Merino Panel Product relied upon by the appellant, from which we have reproduced paragraph 22 above, also lays emphasis more on the fact that the circulars issued interpreting statutory provisions and rules are binding on the tax administrators and authorities so long as they are in accord with and are not at odds with the statute; at the worst, if they cut down the plain meaning of a statute, or fly in the face of their express terms, they are to be ignored. We do not find any proposition in law stated in any of the decisions cited by the appellant that would support....
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.... It is a settled principle in law that when the proposal is not made in the show cause notice, the Department cannot travel beyond the show cause notice. The Judgements of the Honourable Apex Court in Commissioner of Customs, Mumbai v Toyo Engineering India ltd, 2006 (201) ELT 513 (SC) and CCE, Bhubaneswar-II vs. Champdany Industries Ltd, 2009 (241) ELT 481 (SC), lay down the ratio that unless the foundation of the case is made out in the show cause notice, revenue cannot argue in Court a case not made out in the show cause notice. Thus the said ground raised by the appellant in this regard is wholly untenable. 16. We also find that the decision of the adjudicating authority in the impugned order is in line with the final orders rendered by this Tribunal in URC Construction (P) Ltd v CCE, Salem, 2017 (50) STR 147 (Tri-Mad) and H.P Singh Chadha v Commissioner of CGST, Ludhiana (2024) 24 Centax 61 (Tri-Chan). 17. That apart, it is also seen that the decision of the Apex Court in CCE vs. Larsen and Toubro Ltd., 2015 (39) S.T.R. 913 (S.C.), which has been relied upon by the Adjudicating Authority while deciding the matter in Respondent's favour, was further affirmed in no uncert....
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....imited (supra) requires re-consideration, Revenue ought to have filed the review application at that stage and/or even thereafter. No such review application has been filed even as on today. (viii) Merely because in the subsequent cases, the amount of tax involved may be higher, cannot be a ground to pray for re-consideration of the earlier binding decision, which has been consistently followed by various High Courts and the Tribunals in the entire country. 10.3 Keeping in mind the aforesaid factual aspects, the prayer made on behalf of Revenue to re-consider the decision of this Court in the case of Larsen and Toubro Limited (supra) and to refer the matter to the Larger Bench is required to be considered. (emphasis supplied) The Apex Court then went on to hold as under: "12. What was said by the Constitution Bench in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 and Keshav Mills Co. Ltd. v. Commissioner of Income Tax, Bombay North, Ahmedabad, AIR 1965 SC 1636, on the principle of stare decisis clearly bind us. The judgment of this Court in the case of Larsen and Toubro Limited (supra) has stood the test of time and has never been doubted earlier. As observed h....