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Commissioner, ST, New Delhi Versus M/s Swadeshi Construction Co.

2018 (1) TMI 771 - CESTAT NEW DELHI

Construction project of Delhi Haat in INA and Pitampura - commercial nature of the construction undertaken by the respondent - whether classified under Commercial or Industrial Construction Service or otherwise? - Held that: - the constructions undertaken by the appellant are in pursuance of composite works contracts and were not liable to be taxed prior to 01.06.2007. - The SCN was issued on 27.05.2011. On that date, both the tax entries, namely, Commercial or Industrial Construction Servic .....

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Industrial Construction Service, the same is not sustainable - appeal dismissed - decided against Revenue. - Appeal No.ST/2178/2012 - Final Order No.50158/2018 - Dated:- 16-1-2018 - Mr Ashok Jindal Member (Judicial) And Mr B. Ravichandran, Member (Technical) For the Appellant : Shri P.Juneja, AR For the Respondent : Shri Rajveer Singh, Advocate ORDER Per: B. Ravichandran The appeal by the Revenue is against order dated 27.04.2012 of Commissioner of Service Tax, New Delhi. By the said order, he o .....

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Commercial or Industrial Construction and dropping the demand. 2. In the appeal, the Revenue contended that the construction is covered by tax entry Commercial or Industrial Construction Service , as admittedly, shops, stalls, spaces so constructed were let-out on rent and whole premises is used for trading and commercial activity. The Revenue further contended that the civil construction in Delhi Haats is one of the profitable commercial ventures by the DTTDC and the tax liability should have b .....

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to service tax under a category of Works Contract Service . The Tribunal accordingly held that liability of service tax will need to be re-determined under Works Contract Service and afresh demand raised. It was also observed that in case the contracts were found to be not of composite nature, the respondent shall be liable to service tax as this construction is for commercial purpose. With these observations, the Tribunal directed the original authority for a de nova decision after considering .....

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(supra). 4. With the above background, we have heard the ld. AR for the Revenue and the ld Counsel for the respondent-assessee. Both filed written submissions also. We note that though the High Court directed either of the parties to place complete copies of relevant contracts before the Tribunal, copy of one contract with reference to construction of Delhi Haat, Pitampura was placed by the respondent. When the case was heard on 21.11.2017, it was recorded by the Tribunal that the second contrac .....

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01.03.2006 making it clear that the contracts are composite in nature. We also perused the contract with reference to construction of Delhi Haat at Pitampura which is placed before us. The said contract involves supply of materials as well as provision of service. It is a composite contract which is rightly to be considered for taxation only after the introduction of new tax entry for works contract service w.e.f. 01.06.2007. It would appear that the Revenue proceeded to demand service tax with .....

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.2007. We note that the commercial nature of the construction has already been held by the Tribunal in its finding dated 16-03.2017. We note that the civil construction for Delhi Haats is rightly to be considered as commercial in nature. On this account, we are not in agreement with the original authority. 5. The LD AR submitted that the respondent shall be held to be liable to service tax under Works Contract Service though the demand proceedings were with reference to tax entry Industrial or C .....

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h, the tax liability has to be confirmed w.e.f. 01.06.2007 on such services. 6. The ld Counsel for the respondent contested the above submission on the ground that the whole proceeding against the respondent is for demand of service tax under Section 65 (256) as Commercial or Industrial Construction Service. Service tax liability cannot be affirmed under Works Contract Service . Such action will be beyond the scope of the SCN and the same is not permissible. Reliance was placed on various decide .....

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