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2015 (11) TMI 166 - AT - Service TaxCommercial or Industrial Construction service - Work contracts - Appellant neither furnished documents nor responded to the show cause notice or the summons issued - Held that:- Work contracts was not a taxable service prior to 1.6.2007, as Commercial or Industrial Construction Service defined, Section 65 (25b) of the Finance Act, 1994. At least since 1989, the law is clearly settled vide the judgment in Builders Association of India vs. UOI - [1989 (3) TMI 356 - SUPREME COURT OF INDIA] that in works contract, since there is a fusion to two distinctly taxable aspects, namely rendition of service and deemed transfer of goods involved in execution of the works; service tax is leviable only on those aspects amounting to rendition of service and excluding deemed sale of goods. Whether the appellant had in fact provided the works contract service is of course a question of fact. It is so asserted in the appeal for the first time but has not been so asserted or pleaded before the adjudicating authority. Since the appellant has wholly failed to cooperate in the adjudication proceeding by non-cooperation and thereby disabled the ld. Commissioner to properly discharge his statutory functions, to pass a well considered order of assessment and since such non-cooperation of the appellant had resulted in substantial waste of public money involved in the primary adjudication proceeding as well as the clearly avoidable expenditure of appellate resources, we consider it appropriate to afford an opportunity to the appellant to submit its facts and figures and legal defences before the adjudicating authority in de novo proceeding, but on costs of ₹ 5 lakhs, which shall be remitted to the credit of the Union Government, within 30 days - Impugned order is set aside - Decided in favour of assessee.
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