TMI Blog2018 (7) TMI 1798X X X X Extracts X X X X X X X X Extracts X X X X ..... executing are nothing but 'Works Contract’ and as such their case is squarely covered by the Hon’ble Supreme Court judgment in the case of M/s. Larson & Toubro [2015 (8) TMI 749 - SUPREME COURT], where it was held that Works Contract came to be taxed under service tax only w.e.f. 01.06.2007 and that Section 65(105) of Finance Act 94 had levied service tax only on contracts simplicitor and not contested in the Works Contract. There was no charging Section specifically levying service tax only on Works Contract and moreover on tax the service element derived from the gross amount charged for Works Contract less value of property and goods transported under exclusion of Works Contract - Demands in the case of the appellants as far as they pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit under Notification No. 12/2003 ST dated 20.06.2003. The Department contended that the items are consumed by them in the course of providing services and such consumption do not tantamount to sale, therefore, the benefit of the Notification is not available to them. Moreover they are discharging service tax only on 30% of the value without any documentary proof. Department has issued two show-cause notices to the appellants; one to Bangalore Unit and the other to Pune Unit demanding service tax of ₹ 12,63,15,533/- (Rupees Twelve Crores Sixty Three Lakhs Fifteen Thousand Five Hundred and Thirty Three only) and ₹ 1,03,51,424/- (Rupees One Crore Three Lakhs Fifty One Thousand Four Hundred and Twenty Four only) respectively. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be no question on taxing the material element. Accordingly, no interest or penalty is payable and the entire demand is liable to be set aside. 3. The learned authorized representative of the Department has given a written parawise comments on the appeal and has relied upon Aggarwal Colour Advance Photo System 2011 (23) STR 608 (Tri.-LB) wherein it was held that the term sold in Notification No. 12/2003 ST has to be read with sale in Central Excise Act 1944; it does not include deemed sale ; in that view only value of goods/materials sold separately by service provider (photographer) are covered by Notification. 4. Heard both the parties and perused the records. We find that the appellants are builders and are constructing re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of June 2007, we find that the Larger Bench in the case of appellants themselves has held that mutual exclusivity of service tax and sales tax and the powers to tax assigned by the Constitution to the States and Centre respectively on sales and services was highlighted by the Apex Court in the Gujarat Ambuja Cements Ltd. case. The taxing powers of Centre and States assigned in the Constitution have been restated by the Apex Court in the judgment cited by Sobha Developers Ltd. The different Governments viz. Centre and States cannot intrude on the jurisdiction of each other. The decision of the Commissioner to collect service tax on the value on which the appellants had already paid State VAT is contrary to the principles of fiscal federalis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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