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2023 (9) TMI 183 - AT - Service TaxLevy of service tax - Commercial or Industrial Construction Service - works contract service or not - providing of service of civil construction to different Government Organisation/PSU - HELD THAT:- In this case, it is not in dispute that the appellant is providing the services along with materials. Therefore, the merits classification of the above services under “Works Contract Service” and no demand is raised against the appellant under “Works Contract Service”. Therefore, following the decision of the Hon’ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], wherein the Hon’ble Apex Court has held Works contract were not chargeable to service tax prior to 1.6.2007. The classification of the impugned service is under “Works Contract Service” and no demand has been made under “Works Contract Service” as per the show-cause notice. Therefore, till 30.06.2012, the appellant is not liable to pay any service tax. For the post 30.06.2012, the appellant has paid the service tax in respect of service to BSNL not contesting the same. The adjudicating authority in the impugned order has observed that the certificate issued by Executive Engineer, NPWD (Nagaland Public Works Department), Kohima cannot be accepted as the proof that the said building is not for use for any commercial consideration - It is very strange that the adjudicating authority has not accepted the said Certificate by only saying that the said Certificate cannot be accepted, but did not explain what other documents are required for consideration to find out the activity of construction, the said Guest House is taxable or not? The said Guest House constructed by the appellant for CIDCO, is not liable for service tax as the same is not used for commercial and industrial use. Therefore, the demand with reference to the said Guest House is also set aside - the appellant has admitted the service tax liability with reference to construction services provided to BSNL/Port w.e.f.30.06.2012 and paid the service tax thereon, the same demand is confirmed and rest of the demand confirmed under the impugned order, is set aside. Penalty - HELD THAT:- No penalty is imposable on the appellant. Therefore, the penalty imposed on the appellant is set aside. Appeal allowed in part.
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