TMI Blog2018 (10) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... es provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service. For the period after 1.6.2007, service tax liability under category of ‘commercial or industrial construction service‟ under Section 65(105)(zzzh) ibid, ‘Construction of Complex Service‟ under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services‟ simpliciter. The impugned order cannot then sustain and requires to be set aside - appeal allowed - decided in favor of appellant. - ST/528/2011 - 42642/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,58,276/- with interest thereon and imposed equal penalty under Section 78 of the Finance Act, 1994. He also imposed penalty of ₹ 5000/- under Section 77 ibid. Hence this present appeal. 2. Today when the matter came up for hearing, on behalf of the appellant, Ld. Advocate Shri M.N. Bharathi, submits that issue as to whether a composite contract involving provision of service as well as transfer of property in goods could be covered under CICS and RCS from the date of introduction of service tax levy on such services stands finally settled by the Hon ble Supreme Court in the case of CCE Cus., Kerala Vs L T Ltd. [2015 (39) STR 913 (SC)]. Ld. Advocate submits that the very same issue is also squarely covered by the recent decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclude the value of transfer of property of goods has been prescribed. The Apex Court held that since the Finance Act had not laid down any charge or machinery to levy and assess service tax on indivisible works contract prior to 1.6.2007, the levy on such composite works contract prior to that date has no constitutional validity. 7.6 The Larsen Toubro (supra) judgment has been followed by this Tribunal in many numbers of cases to set aside the demand of service tax on services like commercial or industrial construction service, construction of complex service etc. involving composite contract of both material supply as well as service element prior to 1.6.2007. 7.7 In the present appeal also, there is no dispute that the const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case in the facts of these appeals. The activities of the appellants will therefore continue to be in the nature of composite works contractservicesand hence even after 1.6.2007 for the periods disputed in these appeals they cannot be brought within the fold of commercial or industrial construction service or construction of complex service as proposed in the show cause notices and confirmed in the impugned orders. 7.8 On the contrary, being composite works contracts, they will necessarily fall within the ambit of works contract service as defined under section 65(105)(zzzza) ibid. It is possibly with this intent in mind that the lawmakers have included in the definition of works contract, erection and commissioning service, commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for discharging service tax on the service portion of composite contract was introduced only in 2007. 7.11 The ld. AR Shri A. Cletus has tried to counter this contention by stating that works contract service is service / activity which would be of a general nature whereas the construction activities defined in Commercial or Industrial Construction Services, Construction of Complex Service and Construction of Residential Complex etc. are of special nature. He took support of the maxim generalia specialibus non derogant general things do not derogate special things . The counsel for appellants have submitted that as per Section 65A of the Act ibid, classification of service shall be based on the specific entries and the more spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service in the light of the Hon ble Supreme Court judgment in Larsen Toubro (supra) upto 1.6.2007 b. For the period after 1.6.2007, service tax liability under category of commercial or industrial construction service under Section 65(105)(zzzh) ibid, Construction of Complex Service under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services simpliciter. c. For activities of construction of new building or civil structure or new residential complex etc. involving indivisibl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
