TMI Blog2020 (4) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated as per the balance sheet figures available on record - HELD THAT:- No reason has been assigned by the Principal Commissioner as to why the certificate of the Chartered Accountant was not accepted. It is clear that instead of considering the actual advances received during a particular year, the Principal Commissioner has computed taxable value on the closing balance of advances as appearing in the balance sheets. Learned Representative for the assessee has stated that under this head excess demand of ₹ 3,49,553/- due to inclusion of advances has to be set aside and, therefore, the rest of the demand of ₹ 8,69,022/- can be confirmed. There are force in the contention of the learned Representative of the assessee. The excess demand of ₹ 3,49,553/- due to inclusion of advances is set aside. Appeal allowed in part. - Service Tax Appeal No. 53250 of 2015 [DB] WITH Service Tax Appeal No. 53251 of 2015 [DB], WITH Service Tax Appeal No. 53307 of 2015 [DB], WITH Service Tax Appeal No. 53522 of 2015 [DB], WITH Service Tax Appeal No. 53524 of 2015 [DB], 53538 of 2015 - FINAL ORDER Nos. 50629-50634/2020 - Dated:- 2-3-2020 - HON BLE MR. JUSTICE DILIP GUPTA, PR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible. 6. In regard to the third appeal, namely Service Tax Appeal No.53307 of 2015, learned Representative submitted that the Principal Commissioner committed an error in not extending the benefit of the advances from the taxable value of service tax. 7. Dr.Radhe Tallo, learned Authorised Representative for the Department has, however, reiterated the findings recorded in the three impugned orders. In regard to the three appeals filed by the Department, learned Authorised Representative submitted that the decision of the Larger Bench of the Tribunal in Bhayana Builders had been assailed by the Department before the Delhi High Court and that is why the present appeals had been filed. 8. We have considered the submissions advanced by the learned Representatives of the parties. 9. In regard to Service Tax Appeal No.53250 of 2015 filed by the assessee, the submission is that the demand was made and confirmed under construction of complex services, even though, the nature of activity carried out by the appellant was in the nature of works contract , which fact is evident from the order of the Principal Commissioner in Service Tax Appeal No.53251 of 2015 and Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not to composite works contracts. This is clear from the very language of Section 65(105) which defines taxable service as any service provided . All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered by him. This would unmistakably show that what is referred to in the charging provision is the taxation of service contracts simpliciter and not composite works contracts, such as are contained on the facts of the present cases. It will also be noticed that no attempt to remove the nonservice elements from the composite works contracts has been made by any of the aforesaid Sections by deducting from the gross value of the works contract the value of property in goods transferred in the execution of a works contract. 25. In fact, by way of contrast, Section 67 post amendment (by the Finance Act, 2006) for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed under a different category. Thus, in Service Tax Appeal No.53251 of 2015, the demand of service tax could not have been confirmed under works contract when the show cause notice was issued under construction of complex services . 15. In regard to Service Tax Appeal No.53307 of 2015 filed by the assessee, the contention of learned Authorized Representative of the Appellant is that the benefit of advances amounting to ₹ 70,70,250/- from the taxable values of service tax as per the balance sheet should have been given to the appellant. The Principal Commissioner has rejected this contention for the reason that the taxable value of service provided by the party did not tally with the balance sheet figures and, therefore, service tax liability was required to be calculated as per the balance sheet figures available on record. 16. Learned Representative appearing for the assessee has submitted that the figures appearing in the balance sheet are the closing balance of advances, which are different from the figures of actual advance received. In this connection, it has been pointed out that though for the year 2008-09 service tax was payable only on ₹ 10,00,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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