TMI Blog2018 (10) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... s - Scope of SCN. Demand for the period prior to 1.6.2007 - Held that:- The works contract has come into effect only after 1.6.2007 - The decision in the case of Larsen Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] would apply to the period prior to 1.6.2007 wherein it was held that levy under works contract service prior to 1.6.2007 cannot sustain - demand do not sustain. Demand for the period after 1.6.2007 - Held that:- It is seen that though the show cause notice raises the demand under commercial or industrial construction service, the Commissioner has confirmed the demand under works contract service. The Commissioner has thus travelled beyond the show cause notice and the demand after 1.6.2007, for this reason alone, cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 1.3.2006. According to department, the materials are consumed in the course of providing the service and therefore appellants are not entitled to exclude the value of materials for the purpose of payment of service tax. Show cause notice was issued proposing to demand differential service tax along with interest and for imposing penalties. After due process of law, the original authority confirmed the demand, interest and imposed penalties. Hence this appeal. 2. On behalf of the appellant, ld. counsel Shri S. Venkatachalam appeared and argued the matter, which can be broadly summarized as under:- 2.1 The Survey, Intelligence and Research (SIR) branch of the Service Tax Commissionerate, Chennai, visited the business premises of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order it is stated that even though the appellants were showing the value of goods separately for each and every items actually these items were not sold to the customers but all the materials were consumed by the assesse themselves for providing the interior work undertaken by them. The above said observation of the learned Commissioner which leads to confirmation of the demand is not sustainable. In this case, the learned Commissioner‟s acceptance that the appellants‟ service would fall under the category of Works Contract Tax‟ Service, clearly establishes that the appellants satisfy the definition mentioned therein. To fall under its mischief the service should involves goods which is being transferred whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th and 12th of August 2008. During the course of audit and as instructed by the audit party the appellants have presented all their records including income tax returns, invoices, bills, balance sheet, P L accounts pertaining to the previous and current years (period covered in the present appeal). 2.9 It has been held in various decisions that when the material fact is known to the department and when the departmental audit party has visited the unit, and then there could not be an allegation of suppression of fact. As the appellants have availed the benefit of Notification No.12/2003 there is no requirement on the part of the appellants to show the value of materials in the prescribed returns. Only after 2007 new format of ST3 return i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to demand service tax treating the work as a composite contract involving both service and supply of materials. The abatement under Notification 1/2006 has been denied to the appellant by the department stating that the materials involved are consumables and therefore the abatement is not applicable. In the show cause notice, the demand is made under commercial or industrial construction service whereas the Commissioner has confirmed the demand classifying the activity under the category of works contract from 16.6.2005 to 31.3.2008. Needless to say that the works contract has come into effect only after 1.6.2007. The decision in the case of Larsen Toubro Ltd. as reported in 2015 (39) STR 913 (SC) would apply to the period prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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