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2013 (5) TMI 450 - HC - Service TaxAppropriate rate of tax - Works Contract Service - whether the applicable rate of service tax would be rate in force at the time of realisation of the consideration or would it be the rate of tax which was in force at the time of the rendition of the taxable service - 4% v/s 2% - assessee submitted that Rule 3(3) of the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 had not been examined by this court in the case of Vistar Construction (2013 (2) TMI 52 - DELHI HIGH COURT) therefore the decision was distinguishable - Held that:- The rendition of the service had been completed prior to 01.03.2008 and, therefore, the taxable event had occurred prior to 01.03.2008. Consequently, the applicable rate of tax would be the rate which was prevalent prior to 01.03.2008. Since the entire foundation of the argument of the revenue is based on the instruction dated 28.04.2008 which has been found to be invalid by virtue of decision in the case of Vistar Construction (supra), the present appeal is also liable to be dismissed Unable to agree with the appellant inasmuch as the instruction dated 28.04.2008 had been dealt with in detail in Vistar Construction case (supra) and the paragraph 2 thereof, specifically refers to the said Composition Rules of 2007. Secondly, and more importantly, the show cause notice does not contain any such allegation with regard to the respondent having made an option under the said Rule 3. Since, there is no foundational basis for making the submission and no such submission was made before the appellate authority, the appellant cannot be permitted to take up this plea before this court for the first time. Thus following the decision in the case of Vistar Construction (supra,) the present appeal does not raise any substantial questions of law and is therefore dismissed.
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