TMI Blog2022 (8) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... and CETP works at Vizag site. The scope of work cannot be classified under site formation services - In the case at hand, the services are not aligned to the above definition but includes set up of various other units such as WTP, CETP etc which is a composite works contract and hence the same would also merit classification under the service of works contract. Thus, the demand under site formation services cannot survive. Since the issue is already decided on merits, opinion on the point of limitation is not expressed. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.3003 of 2011 - A/30069/2022 - Dated:- 7-7-2022 - HON BLE SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) AND HON BLE SHRI P.V.SUBBA RAO, MEMBER(TECHNICAL) Shri B.Venugopal, Advocate for the Appellant Shri S.Hanuma Prasad, Authorized Representative for the Respondent ORDER P.K.CHOUDHARY : The present appeal arises from Order-in-Original No. 32/2022 (RS) dated 05.08.2011 passed by the Ld. Adjudicating authority against the Show Cause Notice (SCN) dated 19.04.2010 by which a demand of Rs.22,11,73,069/- has been confirmed against the proposed demand of Rs.23,44,76.547/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the categories of Commercial or Industrial construction, Erection Commissioning and Installation services which cannot be sustained as the indivisible works contract services can be subjected to service tax levy only under the category of works contract services and thus the demand would fail. The Ld. Advocate for the Appellant relied upon the following judgments in support of his submissions :- Real Value Promoters Pvt Ltd. Vs. Commissioner of GST and Central Excise, Chennai [2018-TIOL-2867-CESTAT-MAD] M/s. Ashwini Apartments Vs. Commissioner of GST Central Excise, Chennai South [2018 (10) TMI 404 CESTAT, CHENNAI] M/s. Vijaisuriya Constructions P. Ltd. Vs. Commissioner of GST Central Excise, Coimbatore [2018 (10) TMI 402-CESTAT, CHENNAI] M/s. Sai Teja Constructions Vs. Commissioner of Service Tax, Hyderabad [2019 (7) TMI 575-CESTAT HYDERABAD] M/s. SS Constructions Vs. C C.E. S.T., Chandigarh-II [2021 (12) TMI 429 CESTAT CHANDIGARH] 5. As regards the demand on Site Formation Services, the Appellant submits that the work order under dispute for the said services is also a composite turkey contract and hence the same would also merit classification under the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case, the dichotomy is between sales tax leviable by the States and service tax leviable by the Centre. When it comes to composite indivisible works contracts, such contracts can be taxed by Parliament as well as State legislatures. Parliament can only tax the service element contained in these contracts, and the States can only tax the transfer of property in goods element contained in these contracts. Thus, it becomes very important to segregate the two elements completely for if some element of transfer of property in goods remains when a service tax is levied, the said levy would be found to be constitutionally infirm. This position is well reflected in Bharat Sanchar Nigam Limited v. Union of India, (2006) 3 SCC 1 = 2006 (2) S.T.R. 161 (S.C.), as follows :- No one denies the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow the State to entrench upon the Union List and tax services by including the cost of such service in the value of the goods. Even in those composite contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices and for work done. In such a case, there are really two agreements, though there is a single instrument embodying them, and the power of the State to separate the agreement to sell, from the agreement to do work and render service and to impose a tax thereon cannot be questioned, and will stand untouched by the present judgment. (at page 427) . 20. We also find that the assessees argument that there is no charge to tax of works contracts in the Finance Act, 1994 is correct in view of what has been stated above. .. 24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines taxable service as any service provided . All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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