2010 (12) TMI 229

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..... ce issued on 23.10.2008 and received by the noticee on the same date. After examining the records and hearing both sides, we note that the appellant was paying Service Tax prior to 01.06.2007 on the same subject-matter under the head "Commercial or Industrial Construction Service" under Section 65(105) (zzq) of the Finance Act, 1994. With the introduction of levy of Service Tax on "Works Contract" w.e.f. 01.06.2007, the assessee opted for such levy by submitting letter dated 18.06.2007 to the jurisdictional Superintendent of Service Tax, wherein they informed the Superintendent that they were opting for payment of Service Tax under Works Contract Service and, that too, under the composition scheme in respect of all the ongoing works. Accord .....

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..... oth on merits and on the ground of limitation. On both the issues, the adjudicating authority held against the assessee. 2. The learned Counsel for the appellant has argued that neither the Commissioner nor the Board considered the provisions of Rule 3(3) ibid in the correct perspective. In this connection, he has also referred to the Hon'ble High Court's decision in CST, Bangalore Vs. Turbotech Precision Engineering Pvt. Ltd. [2010 (18) STR 545 (Kar.)] wherein it was held that the assessee was not liable to pay Service Tax under the Works Contract service prior to 01.06.2007 inasmuch as the contract period was between 1997 and 2001, during which works contract service was not a taxable service. The learned Counsel has also claimed support .....

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..... He has particularly submitted that the Board's Circular which clearly covered the issue was upheld by the Hon'ble High Court in the case of Nagarjuna Construction Company Ltd. (supra) and, therefore, the assessee cannot claim prima facie case against the demand of Service Tax which is based on Section 65 (105)(zzzza). 4. In his rejoinder, the learned Counsel submits that, even if it be assumed that the Department is entitled to demand Service Tax at the normal rate for the period of dispute, the quantum of demand is liable to be revised. It is submitted that abatement from taxable value to the extent of 67% should have been allowed to the appellant in terms of Notification No. 01/2006-ST, in which event the quantum of Service Tax would hav .....

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