TMI Blog2013 (8) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... SUPREME COURT] and the matter should be remanded back to the adjudicating authority for re-determination of the value of the taxable service by extending the benefit of notification no. 12/2003-ST, 19/2003-ST & 01/2006-ST; and ii) The limitation of time bar does not apply except in the case of Contract pertaining to Chennai Petroleum Corporation Ltd. as held by the Member (Technical) based on the decision of the Hon'ble High Court of Gujarat in the case of Neminath Fabrics Pvt. Ltd. [2010 (4) TMI 631 - GUJARAT HIGH COURT] and the Larger Bench decision in the case of Usha Rectifier Corporation [2000 (4) TMI 117 - CEGAT, COURT NO. II, NEW DELHI]. OR i) Whether a works contract cannot be vivisected prior to 01/06/2007 and subjected to levy of service tax under "erection, installation and commissioning service" as held by Hon'ble Member (Judicial), based on the decision of the Tribunal in the case of Jyoti Ltd. vs. CCE, Vadodara [2007 (12) TMI 20 - CESTAT, AHMEDABAD], Indian Oil Tanking Ltd. [2009 (1) TMI 443 - CESTAT, MUMBAI] and of the apex Court in Govind Saran Ganga Saran vs. Commissioner of Service Tax – 1985 (60) STC 1 (SC); and (ii) The demand is time barred as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum price of Rs.1,08,70,000/- for design and engineering service, and nil service tax was shown under Commissioning and installation services. However, there was a foot note which indicated that service tax shown is considered at 5% rate though the rate of service tax is proposed to be raised from 5% to 8% in the Union Budget, 2003. In contract no. 5, service tax was shown @8% included in the lump sum price of Rs.1,43,56,800/- in the case of design and engineering services and in the lump sum price of Rs.16,50,83,200/- for installation services and in the lump sum price of Rs.40,60,000/- for pre-commissioning/commissioning service. In the case of contract no. 6, in the total lump sum price was given as Rs.2,33,46,000/- and taxes and duties at Rs.33,56,87,000/-. 2.2 The investigation conducted revealed the following:- the services of installation and commissioning formed the major part of the contract; L T rendered the services of installation and commissioning; L T had made provisions for payment of excise duty, import duty, sales tax and service tax in the contract and they could to that extent vivisect the contract and pay duties and taxes; The lump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the entire demands were confirmed along with interest thereon, upholding the charge of suppression. Penalties were imposed under sections 75A, 76, 77 and 78 of the Finance Act, 1994 read with Rule 7C of the service Tax Rules, 1994. Hence the appellant is before us. 3. The ld. Counsel for the appellant makes the following submissions: 1. The activity undertaken by the appellant in execution of various projects is a works contract. Prior to 01.06.2007, there was no provision in the Finance Act, 1994 to levy service tax on works contract. Power to tax is different from exercising the power to tax by creating a charge and unless there is a charging provision to levy tax and a machinery provision to collect the tax, a tax cannot be levied. The Hon'ble apex court in the case of Gannon Dunkerly Co. vs. State of Rajasthan 1993 (88) STC 204 held that the sale element in an indivisible works contract cannot be vivisected and subjected to sales tax, prior to the 46 th Amendment to the constitution. After the said amendment and pursuant to the introduction of Article 366 (29A)(b), it became possible for the States to levy sales tax on the value of the goods involved in the works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of power by creating a charging section with effect from 01.06.2007 and a corresponding full fledged machinery or mechanism to implement the levy, redundant, nugatory, surplus age and wasteful. 4) This Tribunal in the case of Jothi Ltd. vs. Commissioner [2008 (9)STR 373], by a majority decision held that "an indivisible works contract of installation and commissioning" cannot be taxed in the absence of charge prior to 01.06.2007. In the case of CCE vs. Indian Oil Tanking ltd. [2010 18 STR 577 ], again through a majority judgement, this Tribunal held that works contract service is not leviable to service tax prior to 01.06.2007. The Larger Bench decision in the case of CCE vs. BSBK [2010 (253) ELT 522] concludes that the work contract is a divisible contract and indivisible works contract can be vivisected but finally leaves to the respective Hon'ble benches to examine the contracts and its taxability. The hon'ble High court of Karnataka in the case of CST vs. Turbotech precision Engg. Pvt. Ltd.[2010 (18)STR 545] and the hon'ble High Court of Madras in the case of Strategic Engg. Pvt. Ltd. [2011 (24)STR 387] have also held that works contract service is leviable to tax only wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the value of Rs.2288.36Crore which has been taken for computation of tax liability, the estimated value of materials is Rs.1503 Crore. The Chennai petroleum contract has already attained finality as to its non-liability amounting to Rs.76crore. Contract with ONGC includes services rendered in non-designated areas and the value in such cases works out to Rs.354crore. Erection services were brought to levy only from 10.09.2004 and structures were brought to levy only with effect from 16.06.2005. The value for such services rendered prior to their levy should be excluded while computing the tax liability which has not been done. No mechanism has been provided prior to 01.06.2007 to exclude the value of goods and hence the entire levy should fail. In the light of the above submissions, the ld. Counsel prays for setting aside the impugned order and allowing the appeal. 4. The ld. Special Consultant for the Revenue makes the following submissions: a) The issue involved in the present case is whether indivisible works contract (lump sum turnkey contract) can be split up and part of it can be subjected to service tax prior to 01.06.2007. In the impugned order, service tax ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired the knowledge of irregularities of the assesse, the suppression would not be obliterated. In the present case with effect from 12.03.2004, the appellant had included in its registration installation and commissioning service' and even after such registration did not declare in the ST 3 returns, the fact of recovery of service tax from their customers. The act of non-furnishing the correct information in the ST3 returns is not only suppression but deliberate contravention of the provisions of chapter V of the Finance Act, 1994 and the rules made thereunder. Therefore, extended period of time is clearly attracted in this case. The appellant's contention that they had submitted copies of work contracts and there were correspondences between the department and the appellant in this regard cannot be accepted on its face value for the reason that they had recovered service tax from their customers but not paid to the exchequer. Reliance is placed on Kores India Ltd. case [2004 (174) ELT 7 (SC)] and Usha Rectifier Corporation [2001 130 ELT 485] affirmed by the apex court in 2004 (166) ELT A-39 SC. In view of the foregoing, it is prayed that the impugned order merits to be sust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be vivisected (for the purpose of levy of service tax), it would completely nullify the said amendment which sought to vivisect the works contract. 5.1.1. An identical issue was considered by the hon'ble apex court in the case of Bharat Sanchar Nigam Ltd. reported in [2006 (2)STR 161 (SC)]. The issues for consideration before the apex court in the said case were as follows:- 30. These broadly speaking are the respective contentions and in our opinion, the issues which arise for consideration in these matters are:- (A) What are "goods" in telecommunication for the purposes of Article 366(29A)(d)? (B) Is there any transfer of any right to use any goods by providing access or telephone connection by the telephone service provider to a subscriber? (C) Is the nature of the transaction involved in providing telephone connection a composite contract of service and sale? If so, is it possible for the States to tax the sale element? (D) If the providing of a telephone connection involves sale is such sale an interstate one? (E) Would the "aspect theory" be applicable to the transaction enabling the States to levy sales tax on the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular except to the extent that the clauses in Art. 366(29A) operate. By introducing separate categories of 'deemed sales', the meaning of the word 'goods' was not altered. Thus the definitions of the composite elements of a sale such as intention of the parties, goods, delivery etc. would continue to be defined according to known legal connotations. This does not mean that the content of the concepts remain static. Courts must move with the times. But the 46th Amendment does not give a licence for example to assume that a transaction is a sale and then to look around for what could be the goods. The word "goods" has not been altered by the 46th Amendment. That ingredient of a sale continues to have the same definition. The second respect in which Gannon Dunkerley has survived is with reference to the dominant nature test to be applied to a composite transaction not covered by Article 366(29A). Transactions which are mutant sales are limited to the clauses of Article 366(29A). All other transactions would have to qualify as sales within the meaning of Sales of Goods Act, 1930 for the purpose of levy of sales tax. (emphasis supplied) 44. Of all the different kinds of comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of Article 366(29A)(d). The goods in telecommunication are limited to the handsets supplied by the service provider. As far as the SIM cards are concerned, the issue is left for determination by the Assessing Authorities. (B) There may be a transfer of right to use goods as defined in answer to the previous question by giving a telephone connection. (C) The nature of the transaction involved in providing the telephone connection may be a composite contract of service and sale. It is possible for the State to tax the sale element provided there is a discernible sale and only to the extent relatable to such sale. (D) The issue is left unanswered. (E) The aspect theory would not apply to enable the value of the services to be included in the sale of goods or the price of goods in the value of the service." 5.1.2 A larger Bench of this Tribunal in the case of BSBK Ltd. (supra) considered a question "whether turnkey contract can be vivisected' on a reference made by the Division Bench. The reference was "whether service by way of advice, consultancy or technical assistance' in the case of turnkey contract will attract service tax". After considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as judgment of BSNL (supra) and Imagic Creative Pvt. Ltd (supra). (emphasis supplied) 11. In view of the aforesaid legal and Constitutional provisions it can irresistibly be concluded that a contract whether composite or Turnkey may involve an activity or cluster of activities in the nature of services and such services may be provided in the course of execution of such contracts while incorporating goods into the contract concerned. Such discernible services may be advice, consultancy or technical assistance and depending upon the nature of the activity, they may be classifiable under appropriate category of taxable service under section 65 A of the Finance Act, 1994. When Article 366(29-A)(b) to the Constitution has made indivisible contracts of the aforesaid nature divisible to find out goods component and value thereof, it can be unambiguously be stated that the remnant part of the contract may be attributable to the scope of service tax under the Provisions of Finance Act, 1994. (emphasis supplied) 12. On the aforesaid legal and Constitutional background as well for the reasons stated, the Reference may be answered stating that turnkey contracts can be vivis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Instrumentation Ltd. and Alstom Project India Ltd. (supra). Thus the correct position of law as it prevails today is that a composite works contract can be vivisected and the discernible service element can be subjected to levy of service tax if the law provides for the same. 5.1.4 As regards the reliance placed by the appellant on the decisions of this Tribunal in their own case, namely, L T vs. CCE, Cochin and CCE, Vadodara vs. L T, Revenue's appeals against these orders have been admitted by the Supreme Court. Therefore, the Tribunal's orders are in jeopardy and the same cannot be said to have attained finality as held by the hon'ble Apex Court in the case of UOI vs. West Coast Paper Mills Ltd. [2004 (164) ELT 375 (SC)]. Hence no reliance can be placed on these decisions. 5.1.5 As regards the reliance placed by the appellant on the decision of hon'ble High Court of Karnataka in the case of CST vs. Turbotech precision Engg. Pvt. Ltd. (supra) and the hon'ble High Court of Madras in the case of Strategic Engg.Pvt. Ltd. (supra), the facts obtaining thereunder are distinguishable. In the Turbotech case, the contention of the department was that the activity of development, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for materials supplied, prices at sl. No. 1 3 are consideration for services rendered. Thus the contract is not for a lump sum price but provides for separate consideration/value for the supply of goods and supply of services. II) The contract awarded by Indian Oil Corporation Ltd. vide letter of Acceptance PJ/MR-DHDT-MSQ/28 dated 21.4.2003 is Residual process design, detailed engineering, procurement, supply, storage, fabrication, transportation, construction, installation, testing, pre-commissioning, commissioning and performance guarantee test run and handing over of plant consisting of motor spirit quality upgradation, sour water stripper and tail gas treatment of DHDT/MSQupgradation project of Indian Oil Corporation at Mathura refinery. The Schedule of lump sum prices consist of three components 1) residual process design and detailed engineering; 2) supply portion and 3) construction/installation portion. 1. Lump sum price for Residual process design Detailed engineering Rs.31,14,26,050/- 2. Lump sum price for supply portion (supply of materials) Rs.230,95,64,570 + Rs.49,88,60,800 (foreign cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the copies of the contracts submitted by the appellant. These figures may vary slightly from those adopted for quantification of duty as the latter is based on the actual billed prices.) 5.2.1 From the details discussed above, the argument that the contract is a composite one and cannot be vivisected is totally incorrect and mis-leading. The contract itself provides for the break-up of supply of goods and services and the consideration therefor. In this factual scenario, the argument of indivisibility of contracts has to be rejected outright and we do so. 5.3 The next argument of the appellant is prior to the introduction of works contract service, the activity undertaken by the appellant was not declared as a taxable service and hence, the service tax levy would not arise. From the contracts entered into by the appellant as discussed in para 5.2 above, the nature of the service rendered includes erection, commissioning and installation of plant, machinery, equipment and structures. Commissioning or installation service was brought under the service tax net with effect from 01.07.2003 and section 65(28) of Finance Act, 1994, defined "Commissioning or installation" means any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valuation.) Section 68 of the Finance Act provided for the person liable to pay service tax. Thus all the essential ingredients of a tax system, namely, taxable event, rate of tax, measure of tax and person liable to pay service tax was provided for in the law which applied to all taxable services, including the taxable service of erection, commissioning and installation service. Therefore, the argument that there was no system for taxing services rendered as a part of works contract service prior to 01.06.2007 lacks merit. Even under the Works Contract Service brought into the tax net with effect from 01.06.2007 under section 65(105)(zzzza), the taxable service is defined as follows:- (zzzza) any service provided or to be provided to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. Explanation. - For the purposes of this sub-clause, "works contract" means a contract wherein, - (i) transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and (ii) such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase of goods and the hon'ble Apex Court held as follows:- 43. As far as the above points is concerned, it is well settled that for the tax to amount to a tax on sale of goods, it must amount to a sale according to the established concept of a sale in the law of contract or more precisely the sale of Goods Act, 1930. Legislature cannot enlarge the definition of sale so as to bring within the ambit of taxation transactions, which could not be a sale in law. The following judgments and the principles laid down therein can be very well applied to the case on hand. 1. M/s. J.K. Jute Mills Co. Ltd. vs. The State of U.P. and Anr. (1962) 2 SCR 1; 2. M/s. Gannon Dunkerley Co. and others vs. State of Rajasthan and others (1993) 1 SCC 364; 3. The State of Madras vs. Ganon Dunkerley Co. (Madras) Ltd. (1959) SCR 379; 4. The Sales Tax Officer, Pilibhit vs. M/s. Budh Prakash Jai Prakash (1955) 1 SCR 243; 5. M/s. George Oakes (P) Ltd. vs. State of Madras (1962) 2 SCR 570). 44. In regard to the submission made on Article 366(29A)(f), we are of the view that it does not provide to the contrary. It only permits the State to impose a tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislation is in substance, on a matter assigned to a legislature enacting that statute, it must be held valid in its entirety even though it may trench upon matters beyond its competence. Incidental encroachment does not invalidate such a statute on the grounds that it is beyond the competence of the legislature (Prafulla Kumar vs. Bank of Commerce) . 5.3.4 The ratio of the above decision of the apex court applies to the facts of the present case before us. Article 366(29A)(b) permits the States to levy sales tax on the supply of goods involved in a works contract and it does not include the supply of services involved in the transaction. Therefore, even prior to 01.06.2007, the service element involved in a transaction could be subjected to service tax, even if it was part of the works contract. In the case before us, it is not in dispute that the work orders executed by the appellant included not only supply of plant/machinery/equipment etc. but also erection, commissioning and installation service. Therefore, the levy of service tax on the said service under section 65(105)(zzd) read with section 65(39a) of the Finance Act, 1994 is perfectly valid and sustainable in law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel appearing for the appellant that the Impugned Circular is discriminatory in nature. Those who had paid tax as per the provisions and classification existing prior to 1st June, 2007 and those who opted for payment of tax under the provisions of Rule 3 of the 2007 Rules and paid tax before exercising the option belong to different classes and, therefore, it cannot be said that the Impugned Circular or the provisions of Rule 3(3) of the 2007 Rules are discriminatory. From the above decision, it is clear that the Apex Court upheld the mode of levy both prior to 01.06.2007 and on or after 01.06.2007. This implies that the classification of the services under various separate services prior to 01.06.2007 and their re-classification under works contract' service w.e.f 01.06.2007 were held valid. This decision clearly lays low the argument in the present case before us that a service covered under works contract service w.e.f 01.06.2007 cannot be taxed under a different category prior to 01.06.2007. A similar issue came up for consideration before the Advance Ruling Authority in the case of Harekrishna Developers [2008 (10) STR 341 (AAR)]. A question arose as to classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n services during 21.08.2003 to 28.02.2006. The said notification was replaced by notification no. 1/2006-ST dated 01.03.2006 which also provided for similar abatement. Section 67 of the Finance Act, 1994 empowers the levy of service tax only on the gross amount charged for the services rendered. Thus the levy is on the service rendered and, therefore, the measure of the levy also should have nexus with the rendering of the service. The appellant's request in this regard has been rejected by the ld. Adjudicating authority only on the ground that the appellant did not claim the exemption nor did they produce documentary evidence showing sale of goods or non-availing of CENVAT credit. This approach adopted by the adjudicating authority has no sanction in law. When the levy is on the services rendered and the measure is the amount received for such services rendered, it does not give any power to the Revenue to demand service tax on a value inclusive of value of goods sold. Such an approach is perverse and has to be rejected outright. As discussed in the preceding paras, the contract itself provided for separate values for the services provided and the goods supplied. If that is so, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment is that the appellant had registered under the taxable service category of erection, commissioning and installation service" and in the ST 3 returns filed, they did not mention the amounts received as consideration for rendering of such services. Further in some of these contracts, there was a specific mention of service tax element being included in the consideration for the service which also shows that the appellant was fully aware of their service tax liability and also collected the same as part of the consideration and yet they failed to remit the same to the exchequer. Thus the conduct of the appellant was not bona fide at all and, therefore the extended period of time has been rightly invoked. 5.5.1 As regards the reliance placed by the appellant on the Daelim Industrial Corporation case, the issue considered therein pertained to a contract for construction, erection and installation of de-sulphurisation plant on payment of lump sum price. The department raised service tax demand under the category of consulting engineer's service. The Tribunal observed that the contract was a works contract on turnkey basis and not a consultancy contract. The price negotiated was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x to the appellant. In reply thereto vide fax dated 16.03.2005, ONGC have stated that as per contract, it is the responsibility of the contractor to ascertain applicability and payment of service tax. From these letters, what emerges is that the appellant had knowledge of service tax liability and in the contracts entered into they also included the element towards all indirect taxes including service tax. In spite of having taken registration, they did not disclose the details in the ST3 returns filed by them. 5.5.3 As regards the argument that the department had knowledge of the contracts and, therefore, extended period of time cannot be invoked to demand service tax is not sustainable. The hon'ble High Court of Gujarat in the case of Neminath Fabrics (supra) held as follows: 16. The termini from which the period of "one year" or "five years" has to be computed is the relevant date which has been defined in sub-section (3)(ii) of section 11A of the Act. A plain reading of the said definition shows that the concept of knowledge by the departmental authority is entirely absent. Hence, if one imports such concept in sub-section (1) of section 11A of the Act or the proviso the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t did not disclose in the statutory returns the information relating to the services where tax was exempt/not payable. If the appellant honestly believed that they were not liable to pay service tax on works contract prior to 01.06.2007, they should have declared the same in the statutory return. In the absence of such a declaration, the presumption would go against the assesse. 5.5.5 However, as regards the contract with Chennai Petroleum Corporation Ltd., is concerned, it is seen that the Deputy Commissioner of Service Tax vide order dated 18.01.2005 had held that service tax liability is not attracted in the case of an indivisible contract following the Tribunal decision in the Daelim case. Therefore, for the same contract, another show cause notice could not have been issued. If the department was aggrieved of the said order, the same should have been reviewed by the Commissioner which has not been done. Therefore, the said order has attained finality in respect of the said contract. 6. In the light of the foregoing discussion, we hold as follows: 1) A works contract can be vivisected even prior to 01.06.2007 and the service portion discernible in the contract can be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and tax the service component, the same cannot be done. Section 65(39a) define the services of Erection, Commissioning and Installation' as follows:- "erection, commissioning or installation" means any service provided by a commissioning and installation agency, in relation to,- (i) erection, commissioning or installation of plant, [machinery, equipment or structures, whether pre-fabricated or otherwise]; or (ii) installation of- (a) electrical and electronic devices, including wirings or fittings therefor; or (b) plumbing, drain laying or other installations for transport of fluids; or (c) heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work; or (d) thermal insulation, sound insulation, fire proofing or water proofing; or (e) lift and escalator, fire escape staircases or travelators; or (f) such other similar services; Thus, from the plain reading of the provision of law quoted above, it is crystal clear that there is no mandate by the legislature to bifurcate the works contract or turnkey contract and tax the service elemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CCE vs. BSBK Pvt. Ltd. (supra) have not dealt with this aspect of the matter i.e. whether there is a mandate in the Finance Act, 1994 to vivisect or bifurcate the composite contract and tax its service element (s). (iv) With all humility I find that the Larger Bench has only considered the enability provided by the 42 nd amendment of Constitution of India to vivisect the deemed sales of goods involved in the works contract for the purpose of levy of Sales tax. The Larger Bench have not considered the provisions of the Finance Act, 1994 as to the chargeability of service elements in composite works contract without there being clear provision for the same. Hence, the law laid down by the Larger Bench is doubted an needs reconsideration. Even in the State Sales Tax Acts, the definition of Sale' was amended pursuant to the 42 nd Amendment to Constitution of India, so as to bring to charge the deemed sale of goods. 7.2 That it further noticed that the Rules for the value of the service element, as contained in the composite works contract, were brought on the statute only w.e.f 01.06.2007, being rule 2A of the Service Tax (Determination of Value) Rules, 2006. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent cases including Diebold Systems (supra) is still binding on co-ordinate Benches. 46. The second question is whether service tax could be levied on the service component of the works contract in this case. The works contract was executed long before 1-6-2007, during which period such contracts were not exigible to service tax. Works contract came to be taxable only w.e.f. 1-6-2007. The 46th Amendment to the Constitution was made with intent to enable the States to levy sale tax on the sale component of a works contract. It had a direct bearing on entry 54 of State List of the VIIth Schedule to the Constitution. It has no such bearing either on Entry 97 (residuary entry) or on Entry 92C (service tax) of the Union List. The 46th Constitutional Amendment did not purport to enable the Central Excise authorities to levy any tax on the service component of a works contract. After considering the judgments of the apex Court cited by both sides, I find that there, is no direct decision in favour of the Revenue for levy of service tax on the service component of a works contract prior to 1-6-2007. On the other hand, the judgment of the Hon'ble High Court in Indian Nationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrectly made to me as the third judge." 8.1 Thus, in the facts and circumstances, tax-levied in the impugned order is set aside. So far the invocation of extended period is concerned, I find that the process of enquiry by the Revenue authority had started since August, 2003 and several letters were exchanged during the year 2003-04 and also statements of the competent officials of the appellant were recorded by the Revenue. The appellant had provided all the requisitioned details. Copy of correspondence is on record. The appellant had taken its stand of not liable to service tax for the impugned demand on 18.10.2003. 8.2 It is not the case of Revenue that the appellant had not disclosed the transactions in the regular books of account maintained in the ordinary course of business. Rather in respect of contracts considered in the impugned order, the Revenue itself found that one of the composite contracts was not liable to taxation under Consulting Engineers Service. That show-cause notice has been issued only on 7.10.2008 i.e. after about four and half years from the stage of enquiry. Thus, in the facts of the case, no fraud, suppression of facts or contumacious conduct is fou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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