TMI Blog2017 (12) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... riately falls under Works Contract service and the same has not been alleged against the appellant in the show cause notice issued to the appellant. Extended period of limitation - the show cause notice has been issued by invoking extended period of limitation on the ground that, as the appellant has sought information through RTI applications whether their activity is liable to be taxed or not and the same has been replied by the different Commissionerates as well as service recipients that their activity is not liable to be taxed under Finance Act, 1994 - Held that: - reliance placed in the case of M/s. UNIWORTH TEXTILES LTD. Versus COMMISSIONER OF CENTRAL EXCISE. RAIPUR [2013 (1) TMI 616 - SUPREME COURT], where it was held that on account of the fact that the burden of proof of proving mala fide conduct under the proviso to Section 28 lies with the Revenue; that in furtherance of the same, no specific averments find a mention in the show cause notice which is a mandatory requirement for commencement of action under the said proviso, and that nothing on record displays a willful default on the part of the appellant, we hold that the extended period of limitation under the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services. On the basis of scrutiny of documents, it was alleged that the construction of building for SBI and Shrama Vikram Motors falls under category of Commercial or Industrial Construction Services under Section 65 (25b) of the Finance Act, 1994 and construction of Residential Complex is under Section 65 (91a) of the Act. The appellant was granted abatement of 67% on the gross amount received and the appellant is required to pay service tax on the balance amount. Accordingly, the demand was confirmed by invoking extended period of limitation. Aggrieved from the said orders, the appellant is before us. 3. The ld. Counsel for the appellant submits that the appellant has worked for various organisations as Works Contract . The managing partner of the appellant firm has stated in his statement recorded during the course of investigation that they have entered into a Composite Contract as the raw material used in construction is supplied by them and on the basis of that, abatement of 67% on the gross amount received was allowed to the appellant. It is his contention that as the appellant has carried out construction activity with the material, therefore, the activity undertaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial or Industrial Construction Services and construction of residential units under Residential Complex services . The Revenue declined to classify the services under Works Contract services on the ground that no evidence has been produced to show that the appellant has worked under works contract and even after 2007 they have not given option to work under Work Contract Composite Scheme, 2007. The concept of Works Contract was inserted in the Finance Act, 1994 by way of clause (zzzza) in Section 65 (105) with effect from 01.06.2007 whereas the Revenue has classified the services under Section 65 (25b) and 65 (91a) which is taxable under Section 65 (105) (zzq) and (zzzh). The Revenue has neither issued show cause notice nor assessed liability under the said clause even though show cause notice as well as impugned order was passed after 01.06.2007. Therefore, department cannot raise demand under Construction of Commercial Complex or Residential Complex services so the demand is bad in the eyes of law. To support this contention he relied on the decision in the case of Precision Rubber Industries Pvt. Limited Vs. CCE, Mumbai -2016 (334) ELT 577 (S.C.). He further submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Service Tax on indivisible works contracts various exclusions are also made such as works contracts in respect of roads, airports, airways transport, bridges, tunnels, and dams. These infrastructure projects have been excluded and continue to be excluded presumably because they are conceived in the national interest. If learned counsels for the Revenue were right, each of these excluded works contracts could be taxed under the five sub-heads of Section 65(105) contained in the Finance Act, 1994. For example, a works contract involving the construction of a bridge or dam or tunnel would presumably fall within Section 65(105)(zzd) ibid as a contract which relates to erection, commissioning or installation. It is clear that such contracts were never intended to be the subject matter of Service Tax. Yet, if learned counsel for the revenue is right, such contracts, not being exempt under the Finance Act, 1994, would fall within its tentacles, which was never the intention of Parliament. Various judgments were referred to which have no direct bearing on the point at issue. In paragraph 23 of this judgment, the second Gannon Dunkerley judgment is referred to in passing without notici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sale of goods, and (ii) Such contract is for the purposes of carrying out, - (a) Erection, commissioning or installation of plant, machinery, equipment or structures, whether pre-fabricated or otherwise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or (b) Construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or (c) Construction of a new residential complex or a part thereof; or (d) Completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to (b) and (c); or (e) Turnkey projects including engineering, procurement and construction or commissioning (EPC) projects; From the explanation thereon it is clear that the Works Contract means, transfer of property including such contract as sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue. 6. We further find that the show cause notice has been issued by invoking extended period of limitation on the ground that, as the appellant has sought information through RTI applications whether their activity is liable to be taxed or not and the same has been replied by the different Commissionerates as well as service recipients that their activity is not liable to be taxed under Finance Act, 1994. Therefore, in the light of decision in the case of Uniworth Textiles Limited Vs. CCE, Raipur - 2013 (288) ELT 161 (SC), the extended period of limitation is not invokable. The Hon ble Apex Court has observed as under:- 22. We are not persuaded to agree that this observation by the Commissioner, unfounded on any material fact or evidence, points to a finding of collusion or suppression or misstatement. The use of the word willful introduces a mental element and hence, requires looking into the mind of the appellant by gauging its actions, which is an indication of one's state of mind. Black s Law Dictionary, Sixth Edition (pp 1599) defines willful in the following manner :- Willful. Proceeding from a conscious motion of the will; voluntary; knowingly; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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