TMI Blog2013 (9) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... Shipowners Association [2009 (3) TMI 29 - BOMBAY HIGH COURT], had settled the law that as and when a new entry comes into existence in the statute for levy of Service Tax, it would indicate that the said entry was not covered by any services earlier. Appellant’s claim of the project being covered under works contract from 01.06.2007 is bonafide belief carried by the appellant as they had indicated in the return that they have received an amount as an advance for such contract - There are two views on this issue in as much as the Tribunal in the case of ABB Limited [2010 (7) TMI 335 - CESTAT, BANGALORE], held the view that Service Tax liability under the works contract will come into effect from 01.06.007 and it cannot be covered in any e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.06.2007. It is his submission the execution of the said project was taken up and completed by the appellant after 01.06.2007. It is his submission that the appellant herein, had taken registration from the Service Tax authority under the category of works contract for such contract executed by them as agreed to discharge the Service Tax liability on composition basis @ 2% or 4% of the contract value. It is his submission that the lower authorities are seeking to confirm the demand under Commercial and Industrial construction work for an amount received by the appellant during the period December 2006 to March 2007. It is his submission that the appellant herein had been always considering the contract entered by them as works contract and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as Service Tax paid will be available as credit to M/s Essar Oil Limited, who are the sister of the appellant. For this proposition, he would rely upon the decision of Honble Supreme Court in the case of Coca Cola 2007 (213) ELT 490 and the decision of the Tribunal in the case of Larsen Toubro Ltd. 2008 (227) ELT 65 (Tri). It is his submission that on an identical issue, when two different views were brought out to the notice of the Bench of the Tribunal taking up the view in the case of M.M. Constructions 2012 (27) STR 39 (Tri-Del.), the Bench had given an unconditional waiver as there are two views expressed by the Tribunal in the case of ABB Limited, M/s Alstom Projects India Ltd. It is his submission that incidentally, both the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission that in the appellants own case, Income Tax Appellate Tribunal at Rajkot Bench, has held that these contracts cannot be independent contracts. It is his submission that the appellant s contract would be covered by the terminology turnkey project including engineering, procurement and construction or commissioning project and hence the appellant s action of vivisecting the contract is incorrect and if he wants to avail the benefit of composite scheme of works contract, he is supposed to discharge the Service Tax liability on the entire contract value as one composite contract. 4. We have considered the submissions made at length by both sides and perused the records. On perusal of the records, we find that the Service Tax liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r), held the view that Service Tax liability under the works contract will come into effect from 01.06.007 and it cannot be covered in any earlier entries while the decision of the co-ordinate Bench in the case of Alstom Projects India Ltd., takes a different view. We find that when there are two views possible and both the matter being contested before the Hon'ble Apex Court, the appellant s proposition that it is covered by the Stay Order of co-ordinate Bench in the case of M.M. Constructions (supra), is correct. 6. On perusal of the said order of the Tribunal in the case of M.M. Constructions, we find that the Bench has held as under: 4. After hearing both the sides for some time, we find that an identical issue was subject matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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