2012 (12) TMI 232
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....hem from DDA. Revenue issued a show-cause notice demanding service tax on such services rendered by the applicant during the abovesaid period under the category of Construction of Complexes as defined under section 65(30a) and made taxable under entry at 65(105)(zzzh) of the Finance Act, 1994. This entry came into force with effect from 16-06-2005. The said Notice has been adjudicated confirming tax demand of Rs. 97,10,003/- along with interest and penalties. Aggrieved by the order the applicants have filed this appeal before the Tribunal along with an application for waiver of pre-deposit of dues arising from the impugned order for admission of the appeal. 2. The Counsel for applicants submits that the applicants were executing works cont....
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....unsel has also raised a new plea at this stage of appeal before the Tribunal that they are eligible for the exemption under Notification 12/2003-ST dated 01-03-2003 and if this exemption is extended to them there will be no liability for service tax for the impugned contracts. 5. The ld AR for Revenue points out that the officers of Directorate General Anti-Evasion have all India jurisdiction and therefore Officers at DGCEI, Bangalore had jurisdiction to conduct investigation in the matter. Further he points out that the applicants were not registered with Service Tax Department at any place and therefore jurisdiction has to be decided with reference to the place where activity was carried out. Further the registration of the firm at Kolka....
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....n the case of Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 STT 245 (SC) holding at works contract are indeed divisible for the purpose of taxation. A few paragraphs from the decision are reproduced below: "81. This does not however allow State to entrench upon the Union List and tax services by including the cost of such service in the value of the goods. Even in those composite contracts which are by legal fiction deemed to be divisible under Art. 366(29A), the value of the goods involved in the execution of the whole transaction cannot be assessed to sales tax. As was said in Larsen & Toubro v. Union of India (supra) :- "The cost of establishment of the contractor which is relatable to supply of labour and services cannot be inc....
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....utralized. Each one of the sub-clauses of Article 366(29A) introduced by the 46th Amendment was a result of ruling of this Court which was sought to be neutralized or modified. Sub-clause (a) is the outcome of New India Sugar Mills v. Commnr. of Sales Tax - 14 STC 316 = 1963 Suppl. 2 SCR 459 and Vishnu Agencies v. Commissioner of Sales tax - AIR 1978 SC 449. Sub-clause (b) is the result of Gannon Dunkerley & Co. - 1959 SCR 379. Sub-clause (c) is the result of K.L. Johar and Company v. C.T.O. - 1965 (2) SCR 112. Sub-clause (d) is consequent to A.V. Meiyyappan v. CIT -20 STC 115 (Madras High Court). Sub-clause (e) is the result of Jt. Commercial Tax Officer v. YMIA - 1970 (1) SCC 462. Sub-clause (f) is the result of Northern India Caters (Ind....
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....-04-06 to 31-03-07 1533981522 1463679088 95.42% 3094195 0.00% 01-04-07 to 31-12-07 21548451 25841163 119.92% 430970 0.02% 13. Since the applicant did not raise the above argument before the adjudicating authority and did not place the above figures before the adjudicating authority and since the figures are not consistent with common sense and prima facie appears to be result of some ad hoc accounting approach without ensuring that the exemption claimed is in respect of the materials sold for executing the contracts for which tax is demanded we are not giving any credence to the above figures at this stage. This matter cannot be seen with reference to value of materials supplied to DDA during a period without seeing what are the....
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..... Ltd. (supra) quoted by the appellants. The decision of the Apex Court in K_Raheja Development Corporation (supra) the question before the Apex Court was whether the Appellants in that case were dealers and were liable to pay turnover tax under the Karnataka Sales Tax Act. An answer to the above question in the affirmative does not result in the conclusion that service tax need not be paid on the service involved. In that case the issue whether the activity can be taxed as service is not examined and the provisions of Article 366 (29A) of Constitution not considered because that was not relevant to the issue before the court. The decision in the case of L& T relied upon by the appellant is a stay order of the Tribunal and cannot have the e....