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2023 (9) TMI 812 - AT - Service TaxNon-payment of service tax - erection, commissioning and installation services - composite works contract service - extended period of limitation - suppression of facts or not - HELD THAT:- At paragraph 8.1 of the impugned order dated 22.01.2014, the Ld. Commissioner accepts that the assessee was a manufacturer and supplier of WTGs / Windmills and were also providing erection, commission and installation work against the composite contract work order, to make the WTG operational. This is the understanding between the parties and hence, the manner of raising the invoices does not matter. It is also a fact borne on the record that sale of the materials involved were subject to VAT, but however, the same was exempted. At paragraphs 8.1 and 8.2, the Ld. Commissioner, in the impugned order, has categorically observed that the assessee had undertaken the provision of service based on a composite contract. Further, the very fact that the Ld. Commissioner has allowed 67% abatement towards the material cost and 33% towards the service thereby extending the benefit of Notification No. 01/2006-S.T. dated 01.03.2006 itself suggests that the service rendered by the appellant was nothing but works contract. These facts, according to us, are sufficient to uphold the claim of the appellant that the nature of service was clearly works contract service. There was no tax liability since the appellant continued to pay tax under works contract service for the periods under dispute, which is also as per the decision of the Hon’ble Apex Court in the case of M/s. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] and therefore, the appellant has to succeed. The nature of service rendered by the appellant in the case on hand is in the nature of a composite works contract, since it involves both service as well as transfer of the property in goods/materials. This is clearly, therefore, not taxable under the head of ‘erection, commissioning and installation service’ prior to 01.06.2007 as declared by the Hon’ble Apex Court. Hence, just because the Revenue brought to tax under a category other than works contract service, the same does not tantamount to suppression of facts, etc., to justify invoking the larger period of limitation. The impugned orders reclassifying the impugned service under erection, commissioning and installation cannot sustain and resultantly, the same are set aside - Appeal allowed.
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