TMI Blog2017 (12) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 6-12-2017 - Shri S.S Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Shri G. Shivadass, Advocate For the assessee Shri PVR Ramanan, Special counsel (AR) For the Revenue ORDER Per : S. S. Garg The assessee has filed three appeals against the impugned orders dt. 22/03/2007 and dt. 24/05/2007. The Department has also filed appeal No.ST/342/2007 against the impugned order dt. 24/05/2007. Since the issue involved in all the four appeals is identical, all the appeals are taken up together for discussion and disposal. 2. Details of three appeals filed by assessee are given below:- Appeal No. Period of dispute OIO Demand confirmed Penalty ST/280/2007 July 2003 to March 2006 No.14/2007-ST dt. 22/03/2007 Rs.1,95,49,257/- Rs.100/- per day u/s 76 ₹ 1,95,49,257/- u/s 78 ST/281/2007 July 2003 to March 2006 No.15/2007-ST dt. 22/03/2007 Rs.1,79,75,757/- Rs.100/- per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. setting up of sub-station is not restricted to any geographical area to treat them as plant, machinery or equipment and that the activities undertaken by them do not amount to erection, installation or commissioning and further the longer period cannot be invoked to impose penalty. After following the due process, the learned Commissioner vide Order-in-original dt. 24/05/2007 confirmed all the proposals in the show-cause notice. Aggrieved by the said order, appellant/assessee has filed these three appeals. 3.3. In appeal No.ST/342/2007, the prayer of the Department is to enhance the penalty imposed on the assessee. 4. Heard both sides and perused records. 5.1. Learned counsel for the assessee submitted that the impugned orders passed by the Commissioner in all the three appeals are not sustainable in law as the same are contrary to the law laid down by the Hon ble Supreme Court. He further submitted that the issue of whether the service tax can be levied on indiisible Works Contract Service(WCS) prior to 01/06/2007 i.e. the date of introduction of WCS under Section 65(105)(zzzza) of the Act, has been settled by the Hon ble Supreme Court in the appellant s own case in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the award letter provides for price break up for billing purposes and not for making responsibility divisible for all such elements. In such contracts, all the activities viz. supply, erection, installation and commissioning are carried on by the same party and the awardee of the contract is only concerned with the end result of the project. 5.3. He further submitted that the Tribunal in the case of Daelim Industrial Co. Vs. CCE, Vadodara [2003(155) ELT 457] held that a works contract on turnkey basis cannot be vivisected for the purpose of levy of service tax. The above decision has been affirmed by the Hon ble Supreme Court and reported in Commissioner Vs. Daelim Industrial Co. Ltd. [2004(170) ELT A181]. 5.4. He further submitted that it is only through the Finance Act, 2007, w.e.f. 01/06/2007, the Government has sought to levy service tax on some of the activities falling under works contract . The relevant portion of the Finance Act is extracted herein below:- (zzzza) to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought under service tax through new service definition are not taxable under earlier service. For this submission, he relied upon the following decisions:- i. Glaxo Smithkline Pharmaceuticals Ltd. [2005(188) ELT 171 (Tri. Mum.)] ii. Zee Telefilms Ltd. Vs. CCE [2006-TIOL-945-CESTAT-MUM] 5.7. He also submitted that the 46th Constitutional amendment is not applicable for levying service tax on the service component of an indivisible contract and in support of this, he relied upon the following decisions:- i. State of Punjab Vs. Associated Hotels India Ltd. [1972 AIR 1131] ii. CCE C, Kerala others Vs. Larsen and Toubro Ltd. [2015(39) STR 913 (SC)] 5.8. He also submitted that invocation of extended period under Section 73 of the Act is incorrect and bad in law as the appellants have been filing half-yearly returns and has disclosed all the material facts and has not suppressed any facts from the Department. 6. On the other hand, learned special counsel for the Revenue has reiterated the findings of the impugned order. Further the learned special counsel fairly conceded that the present appellant was one of the party before the apex court in the case of L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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