TMI Blog2021 (3) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the Department to charge service tax on this service under any other head - the demand of service tax under the head of Commercial and Industrial Construction Service needs to be set aside. Cargo handling service - supply of river sand - HELD THAT:- The first contract is supply of river sand; it is not for loading or unloading any cargo. Needless to say that if somebody has to supply river sand it has to loaded into the truck and unloaded it at the customer s destination. The nature of the contract remains to be one of supply of river sand and it cannot change into a contract for some other service. Cargo handling service - transportation of limestone from mines - HELD THAT:- The contract is evidently for transportation of goods and the appellant has been discharging service tax under Goods Transport Agency service. Merely because transportation also requires the appellant to load and unload goods, it cannot be said that the appellant has performed cargo handling service - This view with respect to the demand for an earlier period for these services was already taken by this Bench in M/S SHREE MOHANGARH CONSTRUCTION CO. JAISALMER VERSUS COMMISSIONER OF CENTRAL EXCIS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 6 7 1 Commercial Construction Commercial Construction 10(i) 3,11,604/- 3,11,604/- 16 2 Cargo Handling Supply of goods 10(ii) 42,81,968/- 42,81,968/- 18 3 Cargo Handling Transportation of goods 10(ii) 97,493/- 97,493/- 18 4 Supply of Tangible Goods Supply of Tangible Goods 10(iii) 5,58,614/- 5,58,614/- 17 Total 52,49,679/- 52,49,679/- +Interest+ Penalty u/s 76 5. Learned Counsel for the appellant submits that for an earlier period in Service Tax Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 01/03/2006 from the said realised amount under taxable value comes to ₹ 25,21,075/- attracting service tax amounting to ₹ 3,11,604/- . 8. Learned Counsel would submit that from the above, it is very clear that what they had rendered was works contract service which, as per the judgment of the Hon ble Supreme Court in the case of Commissioner of Central Excise and Customs, Kerala versus Larsen Toubro Limited 2015 (39) S.T.R. 913 (S.C.) cannot be charged to service tax under any other head including CICS. In fact, this point was raised by them before the learned Commissioner and it has been explained that they had discharged service tax under works contract service. However, this contention was not accepted by the learned Commissioner on the ground that they had not fulfilled the conditions laid down in Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. Relevant paras 16.01, 16.02 of the impugned order were as follows : 16.01 It is seen that a demand of ₹ 3,11,604/- has been raised under Commercial or Industrial Construction Service (including value of goods/material provided by the recipients of service). The services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax of ₹ 9,33,557/- already paid by them and as proposed in the Show Cause Notice . 9. Learned Counsel would argue that there is no doubt that their contract was in the nature of works contract and it involved both supply of goods and rendition of services. Both the show cause notice and the order-in-original acknowledged this. However, the demand was confirmed under commercial and industrial construction service which is not sustainable and, therefore, this demand needs to be set aside. 10. As far as the demand of service tax under cargo handling service is concerned, it is on account of two alleged services ; (i) supply of raw material like river sand and crusher grit to M/s Enercom India Ltd. ; (ii) transportation of 40mm size limestone from RSMMs Sanu Mines to M/s GLPL, Barmer. The nature of these two contracts is correctly indicated in para 10 (ii) of the show cause notice, as above. Having stated that one contract was for supply of river sand and another is for transportation of limestone the demand has nevertheless been made under cargo handling services and confirmed in the impugned order. Identical demand for the earlier period was set aside by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le goods service in respect of their JCB and tractor which they have supplied to M/s M/s Enercom India Ltd. project. He submits that they are not contesting the demand under this head. 13. Learned Counsel also contested the imposition of the penalty on them. 14. Learned Departmental Representative reiterates the findings of the Original Authority. 15. We have carefully considered the records of the case and submissions made by both sides. 16. There is no dispute on the facts of the case. The demand under Commercial and Industrial Construction Service was made on an activity which admittedly involved both supply of goods and rendering services. In fact, an abatement towards the cost of goods was also given in the show cause notice and the impugned order. It has now been well settled by the Hon ble Supreme Court in the case of Larsen Toubro Ltd. (supra) that works contract service is separate specie of contract known to commerce and it cannot be equated either with a contract for sale of goods or a contract for supply of services simplicitor. Service tax can only be demanded on Works Contract services after the introduction of a charge on works contract service and ..... 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