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2018 (7) TMI 1798 - CESTAT BANGALOREWorks Contract - sale or service? - mutual exclusivity - Benefit of N/N. 12/2003 ST dated 20.06.2003 - appellants are procuring cement, steel, fittings and fixtures etc which are consumed in the providing of services. They are discharging duty of sales tax as well as service tax in the ratio 70% and 30% respectively on the total value of the property - Department contended that the items are consumed by them in the course of providing services and such consumption do not tantamount to sale, therefore, the benefit of the Notification is not available to them. Held that:- What the appellants are executing are nothing but 'Works Contract’ and as such their case is squarely covered by the Hon’ble Supreme Court judgment in the case of M/s. Larson & Toubro [2015 (8) TMI 749 - SUPREME COURT], where it was held that Works Contract came to be taxed under service tax only w.e.f. 01.06.2007 and that Section 65(105) of Finance Act 94 had levied service tax only on contracts simplicitor and not contested in the Works Contract. There was no charging Section specifically levying service tax only on Works Contract and moreover on tax the service element derived from the gross amount charged for Works Contract less value of property and goods transported under exclusion of Works Contract - Demands in the case of the appellants as far as they pertain to a period prior 01.06.2007 are liable to be set aside. Demands for the month of June 2007 - Held that:- The Larger Bench in the case of appellants themselves [2009 (9) TMI 342 - CESTAT, BANGALORE] has held the mutual exclusivity of service tax and sales tax and the powers to tax assigned by the Constitution to the States and Centre respectively on sales and services - the impugned demand of differential duty relating to value of materials supplied in the course of provision of construction of commercial or industrial buildings and construction of residential complex services is not sustainable - demand set aside. Appeal allowed - decided in favor of appellant.
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