TMI Blog2022 (5) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... t has specifically been mentioned since the stage of replying to the show cause notice till filing of the appeal before this Tribunal that the main activity undertaken by the appellants was appellants was installation of tanks, dispensing pumps and other equipments for setting up new petrol pump / retail outlet. Department has produced no document to falsify this submission of the appellant. From the appeal filed herein before this Tribunal, it is observed that the non submission of the requisite documents as that of contract, etc. was because of all documents being taken in possession by the Department at the time when anti-evasion had resumed the work contract vide resumption memo dated 23.9.2013 (the documents under the name of panchnama dated 23.9.2013 is found annexed in the file) - in view of the said document it is clear that work contracts, for want whereof the demand has been confirmed by Commissioner (A), were not in possession of appellant since September 2013, rather had been in Department s own possession. The production thereof was not possible for the appellant, whereas the Commissioner (A) had all opportunity to summon the said record instead of confirming the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice, Erection, Commissioning and Installation Service and Works Contract Services. The Department observed that the appellant was engaged in providing Erection, Commissioning and Installation Services relating to petrol pumps for Indian Oil Corporation (IOCL hereinafter) and have received the payment of Rs. 5,32,33,197/- from IOCL for the period from 27.8.2008 to 31.3.2013 on which the service tax of Rs.56,17,768/- was payable. But from the ST-3 returns of the appellant for the period August 2008 to March 2013 it was apparent that appellant has not paid the service tax. Accordingly, vide show cause notice no. 2844 dated 24.10.2013, the service tax of Rs. 57,17,768/- was proposed to be recovered from the appellant along with interest. The penalty was also proposed to be imposed on the appellant. The said proposal was initially confirmed vide order in original no. 68-14-15 dated 29.12.2014 Commissioner (Appeal) vide Order-in-Appeal number 001-68-14-15 dated 29.12.2014 partly allowed the appeal filed before him. The liability to pay service tax was confirmed, however, was held to be re-calculated after allowing the abatement of 67% in terms of the notification no. 1/2006 dated 1.3.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice that there has been the mention of definition of works contract as defined under section 65 B (54) of Service Tax Act. Still the services provided by appellant were alleged to be the services of Erection, Commissioning and Installation. The Adjudicating authority below have confirmed the said proposal by holding as follows: It is stated that the appellant has not provided copy of contract in respect of service provided at the three locations namely Losal, Kothon and Newai and therefore, I have no option but to classify the same under Erection, Commissioning and Installation service as alleged in the show cause notice and confirmed vide impugned order. 7. Thus the only reason for confirming the impugned demand is the non production of the requisite documents by the appellant. From the record, it is apparent that service tax returns have repeatedly been filed by the appellant for the period from 2008-09 to 2012-13, specifically mentioning the nature of services as that of works contract service. The appellant vide letter dated 9.7.2009 and 22.6.2011 has informed the Superintendent Range II Jaipur about opting to pay tax under Rule 3 of Work Contract (Composition Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mo dated 23.9.2013 (the documents under the name of panchnama dated 23.9.2013 is found annexed in the file). From the said submission, and in view of the said document it is clear that work contracts, for want whereof the demand has been confirmed by Commissioner (A), were not in possession of appellant since September 2013, rather had been in Department s own possession. The production thereof was not possible for the appellant, whereas the Commissioner (A) had all opportunity to summon the said record instead of confirming the proposed demand for want of the said documents. From the submissions of the appellant about the nature of the contract, and in absence of any evidence to falsify the same, we are of the opinion that the contracts awarded to the appellant, were in the nature of works contract services. Section 65B (54) of Service Tax Act, defines work contract as follows: Works contract means a contract wherein transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods and such contract is for the purpose of carrying out construction, erection, commissioning, installation, completion, fitting out, repair, improvement, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussion and analysis, we hold that the appellants shall be liable to service tax under works contract service w.e.f. 1.6.2007. The quantification of their liability shall be determined by the Original Authority after examining the supporting documents. The abatement /composition claimed by the appellant shall be decided based on the evidences provided by the appellant. Penalties imposed are waived in terms of Section 80 of the Act. The demand shall be limited to the normal period in terms of Section 73 of the Act. The appeals by Revenue as well as assessee are disposed of in the above terms. 11. In another order of this Tribunal in the Service Tax Appeal no. 60492/2013 titled as Satish Kumar and Co. vs. CCE ST Jaipur-I as was decided vide final order no. 52265/2018 dated 20.6.2018 it was held as follows: 6. After hearing both sides and perusal of record we note that during the period of dispute i.e. 2006-11, the appellant has undertaken construction activity for various customers. It can be stated that the services rendered in the form of civil construction involves supply of various goods such as steel, cement etc which get consumed in the process of providing constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on are definitely in the nature of works contract. Even if those being the contracts for Erection, Commissioning and Installation service. Since, the property in goods is also involved in rendering the said services, the appellant was entitled for the benefit of abetment of 67% under notification no. 19 of 2013 dated 21.8.2003. The appellant was entitled for exemption of 67% or the gross amount charged as the same was including the value of the pumps, plants and other equipments, etc. Seen from any angle, there appears no liability of the appellant as was proposed vide the impugned show cause notice and as has been confirmed by Commissioner (A) who no doubt has been given the benefit of 67% abetment. The findings of Commissioner (Appeals) therefore are opined to rather be contradictory in nature. 13. The question of invoking the extended period of limitation also does not arise in the present case as apparently and admittedly appellant is a registered service provider and was regularly submitting the ST-3 returns with no objection by the Department except for the impugned show cause notice, No suppression of facts or malafide intent to evade duty can be attributed to the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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