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2023 (7) TMI 434 - AT - Service TaxClassification of services - works contract services or not - benefit of the composition scheme issued by a notification dated 22.05.2007 - Validity of SCN - SCN did not even specify whether the services provided by the appellant would fall under the category of WCS or CICS - extended period of limitation - penalties. Validity of SCN - SCN did not even specify whether the services provided by the appellant would fall under the category of WCS or CICS - HELD THAT:- It is clear that the demand was proposed without specifying a particular taxable category in terms of section 65(105) of the Finance Act. The confirmation of demand on the basis of the aforesaid show cause notice, therefore, is not justified. In this connection reliance can be placed on the decision of the Delhi High Court in THE PRINCIPAL COMMISSIONER, SERVICE TAX, DELHI- VERSUS SHUBHAM ELECTRICALS [2016 (5) TMI 1055 - DELHI HIGH COURT], wherein it was held As rightly pointed out by the CESTAT, the Department itself is unclear whether the service performed by the respondent was “management, maintenance or repair service” or “Erection, Installation and Commissioning Services”. This vagueness goes to root of the matter. Works contract service or not - HELD THAT:- On a perusal of sample work orders submitted by the appellant it also transpires that work orders include the charge supply of goods and fixing and finishing of tiles/granite/marbles by L&T. The activity undertaken by the appellant, being composite in nature, shall, therefore, have to be classified as WCS for the reason that the Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] held that the composite contracts are rightly classifiable under ‘work contract services’. Whether the appellant has correctly availed the benefit of the composition scheme for discharging service tax liability on WCS for the period after 01.06.2007? - HELD THAT:- Mere non-intimation about the option for paying service tax under the composition scheme is a procedural lapse and substantial benefit cannot be denied. In this connection, it would be pertinent to refer the decision of the Tribunal in M/S. AREVA T & D INDIA LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, CHENNAI [2021 (10) TMI 187 - CESTAT CHENNAI], wherein it was held that non-intimation of availing the composition scheme is a condonable lapse and the payment of service tax under the composition scheme cannot be denied for WCS. Extended period of limitation - HELD THAT:- For the period 01.04.2007 to 30.09.2007 the demand is even beyond the period of 5 years. This amount comes to Rs. 73,321/-. For the period from 01.10.2007 to 25.10.2010 the demand is for the extended period of limitation. The demand for the period from 01.10.2010 to 31.03.2012 is within limitation. This demand comes to Rs. 09,07,352/- - Though much has been argued on behalf of the appellant that the extended period of limitation could not have been invoked in the facts and circumstances of the case, but it would not be necessary to decide this issue as the demand itself cannot be sustained. Appeal allowed.
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