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2021 (3) TMI 823 - AT - Service TaxValuation - inclusion of value of materials supplied by the respondent under a separate material supply contract with EDAs in the gross value of Works Contract Service - Rule 3 of Works Contract (Composition Scheme for payment of Service tax) Rules, 2007 - HELD THAT:- From the perusal of explanation to Rule 3 of Works Contract (Composition Scheme for payment of service tax) Rules, 2007 it is clear that the amendment in Rule 3 (explanation to rule 3) would not be applied to any works contract where the execution under the said contract has commenced or where any payment has been made in relation to the said contract on or before 07.07.2009. As per the clear provision under the amended Rule 3 reads with amended explanation and two circular clarifying provision of the said amendment, it is clear that any contract which is executed or payment their against (except the way of credit/ debit) made prior to 07.07.2009, the value of goods supplied under the separate contract cannot be included in the gross value of Works Contract Service - As regard the contention of the revenue that the respondent have executed one composite works contract irrespective of having two separate contract one for supply of goods and other for supply of services, it should be treated as one contract and value of both the contract should be taken together for arriving at gross value of the works contract. To counter the situation like in the present case the amendment was brought with effect from 07.07.2009. If the contention of the revenue is accepted it will amount to give retrospective effect to the amendment of 07.07.2009 which is not permissible under law as per the settled position by Hon’ble Supreme Court in various cases that any amendment cannot be made applicable. Retrospectively unless it is specifically mentioned therein, therefore even considering the undisputed fact of two contracts the value of goods supplied under separate contract cannot be added in the value Works Contract Service. Extended period of limitation - wilful suppression of facts or not - HELD THAT:- There is no suppression or wilful misstatement on the part of the respondent. The Learned Commissioner in the impugned order also observed that the respondent has filed periodical ST-3 return regularly and disclosed all the necessary details as may be required. The respondent also provided contract wise/ invoices wise details along with ST-3 return filed before the Jurisdictional Authority. In this circumstances charge of suppression or wilful misstatement do not survive against the respondent - extended period of limitation is not invokable. Appeal dismissed - decided against Revenue.
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