TMI Blog2017 (8) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be leviable to service tax as demand was made prior to 1 June 2007. Hence, the Appeal deserves to be allowed - decided in favor of appellant. - Central Excise Appeal No. 17 of 2016 - - - Dated:- 2-8-2017 - Anoop V. Mohta And Smt. Bharati H. Dangre, JJ. Mr. Anupam Dighe with Ms. Chandni Tanna I/by India Law Alliance for the Appellant Mr. M. Dwivedi, Senior Standing Counsel for the Respondents JUDGMENT ( Per Anoop V. Mohta, J.): 1 Rule. Rule is made returnable forthwith. Heard finally by consent of parties. 2 The writ petition is against the service tax authority. The Appellant has raised various issues around his rejection of Application for refund of service tax under Section 11B of the Central Excise Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that any charge to tax under the five heads in Section 65(105) noticed above would only be of service contracts simpliciter and not composite indivisible works contracts. 41 We are afraid that there are several errors in this paragraph. The High Court first correctly holds that in the case of composite works contract, the service elements should be bifurcated, ascertained and then taxed. The finding that this has, in fact, been done by the Finance Act, 1994 Act is wholly incorrect as it ignores the second Gannon Dunkerly decision of this Court. Further, the finding that Section 67 of the Finance Act, which speaks of gross amount charged , only speaks of the gross amount charged for service provided and not the gross amount of the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 The Supreme Court, considering the scheme around the works contract and or indivisible works contract has held as observed in above para (2) that itself, is sufficient to interfere with the order passed by the CESTAT. The unsustainable impugned order was based upon Larsen Toubro Ltd vs. Commr. Of S. Tax Delhi [2015 (38) STR 268 (Tri. LB)] and G.D. Builder v. Union of India 2013 (32) STR 673 (Del). 5 The findings given by the Supreme Court in Larsen Toubro (supra), that works contract cannot be vivisected into various components. It cannot be taxed under different Acts. The work contract service involved in the present case, the Erection, Commissioning and Installation, would not be leviable to service tax as demand was m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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