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2022 (9) TMI 1158 - AT - Service TaxNon-payment of appropriate service tax - Commercial & Industrial Construction service - Construction of Residential Complex Service - Works Contract Service - Consulting Engineer Services - Supply of tangible goods service. Construction works - HELD THAT:- Admittedly for the construction works, the appellant was not only providing services but was also providing the material. The submission of learned counsel for the appellant is that such a service provided by the appellant would be covered under the ‘works contract’ service w.e.f. 01.06.2007, as was held by the Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] where it was held that Works contract were not chargeable to service tax prior to 1.6.2007 - thus, demand not sustainable. Period upto 30.05.2007 - HELD THAT:- Annexure-IX to the show cause notice has divided the services provided by the appellant into two categories. The first is under construction service upto 30.05.2007 and the second is under the works contract service for the remaining period of the demand. Works contract service became taxable w.e.f. 01.06.2007 - It is not in dispute that the appellant was providing services as well as materials. In such circumstances, the service could not have been confirmed under any category except works contract which service became taxable only w.e.f 01.06.2007. Thus, confirmation of the demand under CICS and CCS prior to 01.06.2007 cannot be sustained. Period post 01.06.2007 - HELD THAT:- The demand has been proposed in the show cause notice under works contract but it has been confirmed under CICS or CCS. It is a settled law that the demand proposed under a particular category cannot be confirmed under a different category. Consulting engineer service - submission of the learned counsel for the appellant is that it should have been confirmed on the amount of Rs. 1,19,96,452/- which was actually realized/received during period in issue and not on the basis of gross billing of Rs. 1,58,08,357/- - HELD THAT:- This submission of learned counsel for the appellant deserves to be accepted for the reason that the demand could have been calculated only on the amount actually realized/received during that period. Demand in respect of supply of ‘tangible goods’ service relating to Vibrators and JCB Excavators provided on rent - HELD THAT:- There was a transfer of right of possession and effective control of the goods and, therefore, could not have been subjected to levy of service tax since it would amount to deemed sale under article 366(29A) of the Constitution of India. The impugned order dated 28.03.2004 passed by the Commissioner cannot be sustained and is set aside except to the extent it concerns the services provided under ‘consulting engineer’ service. This issue relating to levy of service tax on ‘consulting engineer’ service would have to be remitted for re-determination of the amount of service tax on Rs. 1,19,96,452/- which was the amount actually realized/received by the appellant during the period - Appeal allowed in part and part matter on remand.
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