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2018 (6) TMI 932 - AT - Service TaxCommercial or Industrial Construction Service - appellant had not registered themselves with the department in order to file ST-3 returns periodically - non-payment of Service tax - demand of service tax alongwith Interest and penalty - Construction service for commercial concern during the period from April 2005 to December 2006 - Construction services provided to Common Effluent Treatment Plant (CETP) as sub-contracted to M/s. Enkem Engineers Pvt. Ltd. for the period April 2005 to September 2008 - Construction services provided to common effluent treatment plant directly for the period April 2005 to September 2008 - Works Contract Services. Held that:- It is seen that the department has given the benefit of abatement of 67% on the composite contract value. This establishes that the activities fall within the works contract service. Therefore, the period prior to 1.6.2007 cannot be subject to levy of service tax as laid down by the Hon’ble Supreme Court in the case of Commissioner of Central Excise Vs. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] - demand for the period prior to 1.6.2007 set aside. Demand for the period after 1.6.2007 upto 30.9.2008 - case of appellant is that the activities / construction were for non- commercial purposes and hence not taxable - Held that:- Works contract service would cover all construction activities whether commercial or non-commercial if such construction activities fall within the definition of Section 65(zzza) of the Finance Act, 1994 - The service tax demand is on the appellant who is a contractor. Further, the ETP cannot be considered as non-commercial one, since the ultimate beneficiary is the dyeing units who are the polluters - the contention that CETP is not installed for commercial purpose and therefore would not fall within Commercial or Industrial Construction Service is not tenable. We also do not find any merit in the argument of the ld. counsel that Board Circular No.80/2004-ST dated 17.9.2004 is in support of the appellant and that construction does not fall within the category of commercial construction - The demand for the period from 1.6.2007 to 30.9.2008 is sustainable Time Limitation - Held that:- Since the appellant has not taken registration or paid the service tax even after being pointed out by the department, it is seen that the adjudicating authority has confirmed the demand for extended period also - The issue being interpretational one, the penalty requires to be set aside. Appeal allowed in part.
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