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2016 (9) TMI 631 - AT - Service TaxInvokation of extended period of limitation - Demand alongwith interest and penalty - Commercial or industrial construction service for the period upto 31-05-2007 and Works Contract service for the period 01-06-2007 to 31-03-2011 - Held that:- the appellant has contended that service provided by them has been correctly classified as WCS for the period from 01-06-2007 and that same service cannot be classified under CICS for the period prior to 01-06-2007. This contention is correct and any dispute in this regard has been settled by the Hon'ble Apex Court in the case of Commissioner CE & Cus, Kerala Vs Larsen & Toubro Ltd [2015 (8) TMI 749 - SUPREME COURT]. This being so, there can be no demand on the appellant on WCS provided by him prior to 01-06-2007 and even by treating such services as CICS. The show cause notice itself acknowledges that ST-3 returns have been filed by the appellant. It also takes cognizance of the fact that the appellants had approached the A.P. High Court with regard to dispute to nature of service provided by them. This being so, it is patently incorrect for the department to allege in the said show cause notice, wilful suppression of facts. In consequence, invocation of extended period in the show cause notice is not justifiable and the demand of tax will have to be limited to the normal period of one year computed from the date of service of notice which the appellant has claimed to be 01-11-2011. Also the appellant has contended that rate of service tax on WCS has been computed wrongly at 4% instead of 2% from 01-06-2007 to 20-08-2008; that demand has ignored and not taken into account that their abated value of turn over during impugned period was below threshold limit of taxability. Therefore, the demand in show cause notice beyond the normal period is unsustainable being barred by limitation. The matter requires to be remanded to original authority for re-quantification. - Appeal partly allowed by way of remand
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