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2022 (2) TMI 1122 - AT - Service TaxLevy of service tax - Works Contract - Commercial or Industrial Construction Service - demand on the ground that the service was not covered under the negative list - Period pre and post 2012 - HELD THAT:- As per the judgment of the Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], service tax on ‘Works Contract’ can be levied only under the head of ‘Works Contract’ under section 65 (105) (zzzza) and not under any other service. Therefore, for the period up to 2012, the demand of service tax under the head of ‘Commercial or Industrial Construction service’ in the impugned order cannot be sustained, as undisputedly, the services rendered (except one service for ‘Labour Contract’ to M/s Pratibha Industries Limited for 2010-11) were ‘Works Contract Services’. There is no demand under the head of ‘Works Contract Service’. Therefore the demands up to 2012 cannot be sustained and needs to be set aside. As far as the period post 2012 is concerned, the appellant’s contention is that although they are liable to pay service tax on the ‘Works Contract’, but they were entitled to abatement in terms of Rule 2A(ii)(A) of service Tax (Determination of Value) Rules, 2006 - major portion of the demand which pertains to period prior to 2012 cannot be sustained in view of the judgment of the Supreme Court in the case of Larsen & Toubro Ltd. and it needs to be set aside and is set aside. In respect of the period post 2012 the impugned order is not clear as to how the Commissioner has concluded that the appellant had availed CENVAT credit on the inputs. For this period, the Commissioner’s findings in the impugned order are sketchy in respect of two service recipients and there are no findings in the remaining two service recipients. Further, in respect of the labour contract, which is said to have been rendered during 2010-11 by the appellant to M/s Pratibha Industries Ltd., an amount of ₹ 39,196/- has been confirmed in the impugned order. It needs to be seen whether this amount is already covered by the service tax already paid by the appellant - matter is remanded to the Adjudicating Authority for determination of the liability post 2012 and in respect of the sole Labour Contract entered into by the M/s Pratibha Industries. The appeal is partly allowed and partly remanded.
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