TMI Blog2020 (8) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... that the contacts is for the construction of bunds which includes various services such as supply of uncoursed black trap rubble stone and its spreading/dressing, worth filling at various trenches and bunds and dressing of entire bunds slope before metal spreading. As regard the rate of the job it is bifurcated into the labour work and metal spreading. This clearly shows that the appellant have not only provided the service of construction of bunds but also supplied the vital material such as un-course, black trap rubble stone and other material, therefore, it is a composite work of Works Contract which includes supply of material and construction of bunds. It is also undisputed that the service recipient is a commercial organization who are doing business trading of Salt which is produced in the bunds constructed by the appellant. Therefore, the service is clearly falling under the category of Industrial Commercial Construction Service. This service is specified under Works Contract Service. In the present case since the appellant have admittedly supplied the material there is a transfer of property of the said material. The overall construction job subjected to payment of VAT wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied for the work of GSB as well as for compaction. The appellant had discharged the service tax on the aforesaid activities under the three taxable service categories of works contract, construction service formation service. The department seeks to deny such classification of services and contend that the services provided by appellant to M/s. Archelean Chemical Private Limited, are only classifiable under site formation and clearance and excavation, earthmoving services under section 65 (105) zzza of the Finance Act, 1994 as against the claim of appellant under works contract . Accordingly the show cause notice dated 09.10.2015 was issued for the period 2010-11 to 2014-15 wherein the differential service tax demand was raised with propositions for equal penalty and other penalties under sections 76 77 and also applicable interest under Section 75. The show cause notice also invoked the larger period for making demand of service tax. The original adjudicating authority namely the Commissioner of Service Tax Rajkot, confirmed the entire demand of the service tax raised and also imposed penalty vide Order in Original dated 27.09.2016. Being aggrieved by the said Order in Original, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to defined activity of Site Excavation and formation services, is entirely misplaced against the very definition under the Act and clearly wrongly interpreting Works Contract Services. It is his submission that in fact the activities undertaken by the appellant relate to construction of bunds which are used for storage of water, as Roads for patrolling there. The activities therefore are not Site formation or clearance or excavation, but rightly works contract for construction of bunds. He submits that in almost all works contract services, it is sale of certain materials along with service which generally is used for construction of immovable property , but in any case what is sold is the construction or repairing materials, being immovable property and structure that is constructed is immovable property , which is not sold. In the present case also, what was sold/supplied was GSB metals/stones and not the bunds , but with GSB metals/stones and using other materials and services, bunds were constructed. In case the contractor is not registered with the VAT department then in those cases, the recipient of works contract service, in which there is supply of materials also, pays the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rastructure Ltd Vs. Union of India (Para-8) 2017 (48) STR J104 (SC) N K G Infrastructure Ltd Vs. Commissioner 2019 (30) GSTL J95 (SC) Timken India Ltd Vs. Commissioner 2020 (33) GSTL 187 (Chhattisgarh) Ambalal Chauhan Vs. CCE., Raipur (Para- 10) 2017 (3) GST 164 (Tri.-Chennai) CMS (I) Operations Maintenance Co P Ltd Vs. CCE., Puducherry (Para-7 8) 2014 (34) STR 104 (Tri-Del) CCE., Kanpur Vs. Agra Computers (Para-11 12) 2011 (23) STR 433 (SC) Idea Mobile Communication Ltd Vs. CCE., Cochin (Para-18) Circular No.B1/6/2005-TRU dated 27.07.2005 (Para-6) Notification No.24/2012-ST dated 06.06.2012 2015 (40) STR 707 (Tri-Del)- Cellebrum Technologies Ltd Vs. CCE., Chandigarh (Para-9) 2017 (52) STR 291 (Tri-Del)- Ramesh Construction Company Vs. CCE., Raipur (Para-5) Notification No. 30/2012-ST dated 20.06.2012 5. We have heard both the sides and perused the records. The issue to be decided by us in the present appeal is the classification of services provided by the appellant to their service recipient that whether the said services will fall under Site Formation and clearance, Excavation and Earth Moving Services as claimed by the department or under Works Contract Service as claimed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the rival services. We find that to qualify a service as Works Contract Service under Section 65B(54)of the Act, it refers to the criteria : a) There should be transfer of property in goods. b) Such supply should be subjected to VAT. c) Construction should be of an immovable property. 5.2 In the present case since the appellant have admittedly supplied the material there is a transfer of property of the said material. The overall construction job subjected to payment of VAT which was paid by their service recipient under Reverse Charge mechanism. The appellant in this regard submitted various documents which shows that the job undertaken by the appellant has suffered VAT liability. The overall work is of construction of bunds which falls under Industrial Commercial Construction Service. The said construction is undisputedly of an immovable property. With this fulfilment of the criteria, the service is squarely covered under the category of Works Contract Service. 6. As Revenue s claim of classification of the same services under Site Formation clearance, Excavation Earth Moving and demolition Services, the definition of the same is reproduced below. (97a) Site formation and clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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