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2022 (9) TMI 390 - AT - Service TaxClassification of services - Works Contract Service or Commercial or Industrial Construction Service - demand of service tax on works contract till June 2007 was payable or otherwise? - inclusion of value of material supply free of cost by the service recipient - extended period of limitation - HELD THAT:- As regard the issue that whether the free supply material needs to be included in the services of Commercial or Industrial Construction Service , the issue is no longer res- integra as held by the Hon’ble Supreme court in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] that the value of free supply material need not to be included in the gross value service in order to avail the benefit of abatement. Therefore, as per the fact since the appellant has provided the service along with material their services are clearly classified as works contract service. The appellant subsequently started paying service tax on works contract service which is not disputed by the department. The Works contract service was not taxable prior to 01.06.2007 in the light of the Hon’ble Supreme Court judgment in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] therefore, the demand prior to 01.06.2007 is clearly unsustainable as held by the Apex Court. Demand under Commercial or Industrial Construction Service post 01.06.2207 - HELD THAT:- The SCN as well as the adjudication order was passed classifying the service under Commercial or Industrial Construction Service whereas the service of the appellant is classified under works contract service. On this fact the demand raised under Commercial or Industrial Construction Service will not sustain being proposed and confirmed under the wrong classification whereas the services are correctly classifiable under works contract service - when no demand was raised under Works Contract Service post 01.06.2007, the demand raised under CICS/CCS will not be sustained. Since the issue is decided on merit of this case, other issues raised by the appellant such as abatement valuation, limitation etc. are not addressed. Appeal allowed - decided in favor of appellant.
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