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2017 (10) TMI 404 - AT - Service TaxBenefit of N/N. 1/2006 dt. 1.3.2006 - services where material was included in the provisions of service - Commercial and Industrial Construction Service - Management, Maintenance or Repairs Service - Construction of Complex Service - Held that: - The argument that the services are in the nature of works contract services is a legal argument and can be raised by the appellant even if it was not raised earlier. In his submissions before Tribunal - the Ld. C.A. has brought to our attention pages 315 to 332, 357 & 358, 344, 353, 354 of appeal to show that the said contracts are in the nature of works contracts as the price is inclusive of material and works contract tax has been deducted. In respect of these services service tax from the period prior to introduction of the works contract service cannot be demanded - demand set aside. Valuation - non-inclusion of the material supplied by the service recipient for provision of the in the assessable value - Held that: - In view of the decision of Larger Bench of Tribunal in the case of M/s. Bhayana Builders (P) Ltd. Vs. CST, Delhi [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], the said amount cannot be included in the assessable value for the purpose of payment of duty - The value of free supply material cannot be included in the value for the purpose of charging service tax - demand set aside. In respect of Multipurpose Hall of Municipal Council Umred and Multipurpose Hall and Library Building Construction for PWD, Nagpur, the appellant have contended before the Commissioner that the said construction is not of commercial nature - Held that: - It is seen that in this regard the order of Commissioner is not a speaking order as it gives no finding in respect of Multipurpose Hall and Library building constructed for PWD, Nagpur - In view of the clear cut Certificate the same cannot be treated as commercial building attracted service tax in the category of commercial and industrial construction. The certificate issued from the office of Municipal Corporation, Umred dt. 30.4.2012 also certifies that it is used for public utility and no revenue generated from the same. In view of this certificate, it is apparent that no tax under the category of commercial and industrial construction can be demanded in respect of these structures - demand set aside. Management, Maintenance or Repairs for goods, equipments or properties service - demand of service tax - Held that: - On perusal of contracts it is seen that the services provided by the appellant are in the nature of repair services. There is no exclusion from the levy of service tax under management, maintenance or repair service for such services given to non commercial structures thus these services would be rightly classifiable and taxable under management, maintenance or repair services. However it is seen that vide Notification No. 54/2010-ST dt. 21.12.2010 full exemption has been provided in respect of management, maintenance or repairs of roads, tunnels, bridges etc - no duty can be demanded in respect of repairs made to bridges - demand set aside. Construction of complex service - Construction of artificial testing track at Dy. RTO Office premises at Chandrapur - appellants had contended that the testing track is nothing but a road the Commissioner has held that the said track cannot be considered as road - Held that: - it is apparent that the said services cannot be charged to service tax under the category of construction and complex service as the service recipient has engaged the appellants for construction of properties for the use of their employees and not for any other purpose - demand set aside. Extended period of limitation - penalty - Held that: - the appellants are a large company and are expected to be fully aware of the laws commercial and industrial construction service, management, maintenance and repair services. They cannot plead ignorance for failure to file return and to pay service ta - extended period and penalty rightly invoked. Appeal allowed in part - For the quantification of duty and redetermination of penalty under Section 78 the matter is remanded to the original adjudicating authority.
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