2026 (4) TMI 607

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....S-000-APP-017 to 019-15-16 dated 28.04.2015 passed by the Commissioner of Central Excise, Customs & Service Tax (Appeals-III) Cochin. The details of the appeals are as under: Sl. No. Appeal No. Order-in-Appeal No. & Date Period involved (show cause notice date) Amounts involved (Rs.) Name of the Project 1 ST/21849/2015 TVM-EXCUS-000-APP-017 to 019-15-16 dated 28.04.2015 10.09.2004 to 31.03.2007 (19.10.2009) 13,15,352/- a/w interest u/s 75 and equal penalty u/s. 78 Temple Tree Project and Nandanam Project 2 ST/21851/2015 TVM-EXCUS-000-APP-017 to 019-15-16 dated 28.04.2015 10/2008 to 09/2009 (24.03.2010) 13,19,863/- a/w interest u/s 75 and penalty @ 2% u/s. 76 & Rs.1000/- u/s 7....

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....ature of the contracts entered into by the appellant. He submits that the agreements relied upon in the show cause notice (SCN) itself, including those relating to "Nandanam Apartments" and "Temple Tree", clearly establish that the appellant was engaged in execution of composite, indivisible works contracts, involving supply of materials as well as provision of labour and services, on a turnkey basis. The so-called "management fee" is nothing but a part of the overall consideration for execution of such composite contracts and cannot be artificially isolated to create a service. 4. Learned Counsel further submits that the issue is now settled by the Constitution Bench judgment of the Hon'ble Supreme Court in Commissioner of C. Ex. an....

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....iability to pay service tax can be shifted to the other party by mutually agreed contractual agreement is no more res-integra. He relied on the case law in M/s. Rashtriya Ispat Nigam Limited-[2012 (26) STR 289 (SC)]. The department, having relied upon the very same agreements to raise the demand, cannot selectively ignore the clauses relating to tax liability, such an approach is legally impermissible and contrary to settled principles. It is well established that the incidence of tax as between contracting parties can be validly determined by contract, and where the contractual obligation places the burden on the developer, the same cannot be shifted on to the appellant by the department in disregard of the binding contractual terms. In fa....

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....nkey composite projects and not rendering independent taxable services to developers. 7. The learned Authorised Representative (AR) for the Revenue reiterated the findings of the Commissioner (Appeals) in the impugned orders. 8. Heard both sides and perused the records. 9. We find that in this case the appellant has executed projects as mentioned in Para 2 and the projects were executed before and after the introduction of 'Works Contract Service' with effect from 01.06.2007. We find that the activities of 'commercial and industrial construction' and 'construction of complex' services are not taxable before 01.06.2007 following the decision of the Hon'ble Apex Court in the case of Commissioner of C. Ex. ....