TMI Blog2013 (12) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery of disallowed Cenvat credit availment of ₹ 1,22,53,815/-; appropriated ₹ 48,84,111/- already remitted by the appellant, towards the assessed Service Tax liability; and imposed interest and penalties, as specified. 2. Proceedings were initiated by the show cause notice dated 5-5-2011 on the basis of intelligence gathered by officers of the anti-evasion unit of the Bangalore Commissionerate, which indicated that the appellant was providing construction of residential complex service, a taxable service and without obtaining registration under that category; filing returns or remitting Service Tax due. The period covered by the proceedings was 1-11-2006 to 30-9-2010. Verification of the records disclosed that no return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax) Rules, 2007. The appellant further contended that it had obtained registration under construction of complex service ; registration is not conclusive and the adjudicating authority is required to classify the service provided strictly in terms of (the legislative mandate enjoined after introduction of) works contract service with effect from 1-6-2007; and that as Service Tax was remitted after availing the benefit of 4% composition and excluding the value of land transferred to the buyers under the agreements, there was no balance liability to tax nor a correlative liability to interest and penalties as proposed. The appellant also referred to Board circulars providing guidance on classification of the service into construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to the levy of Service Tax, in accordance with the rate prescribed under Section 66. 5. The above conclusion of the learned Authority is fundamentally flawed. It is clear that on a true and fair construction of the provisions of Section 67(1)(i), that in a circumstance as in this case, wherein the consideration for service is in money, the appropriate value exigible to Service Tax would be the gross amount charged for providing the service and that would not include the component of any consideration received for sale of immovable property. This is clear from several precedents including the recent judgment of the Delhi High Court in G.D. Builders v. UOI [2013-TIOL-908-HC-DEL-ST = 2013 (32) S.T.R. 673 (Del.)], wherein the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant material such as invoices, bills, etc. were furnished to the adjudicating authority. 7. The Commissioner, Service Tax, Bangalore has filed an affidavit dated 26-6-2013, stating that the appellant had stated that invoices were enclosed with a statement containing details of Cenvat credit availed, appended as Annexure-5 to its reply to the show cause notice; however, on verification of Annexure-5, the statement of Cenvat credit availed was not available in the records. It is also stated that Annexure-5 is merely a summary of Cenvat credit availed for the period March, 2008 to August, 2008 but no copies of any invoices or bills were furnished. 8. It requires to be noticed that after introduction of works contract as an indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return or on a premise that the assessee has undervalued the liability to tax; and wherever in such proceedings initiated, the assessee contests the alleged classification, the obligation of the adjudicating authority to properly classify the service provided by reference to the appropriate taxable service, is a non-derogable obligation. 9. We are not persuaded to accept the view canvassed by Revenue that the 2007 Rules indicate an option available to the assessee to opt for works contract service or any other similar service such as construction of commercial or industrial construction service. Neither the adjudicating authority nor the assessee have an option to decide as a matter of subjective choice, which taxable service a particula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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