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TMI Blog2019 (9) TMI 1531X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel appearing for the appellant, it is an industry practice to enter into separate contracts for 'supply' and for 'service' with the former delivered at site after clearance on payment of applicable duties of central excise and on the latter, comprising also of material such as cement, steel etc., being procured for on-site installation, tax was being discharged under Finance Act, 1994 after availing abatement of 67%. He informs that though such assessment as provider of 'erection, commissioning and installation agency service' was discontinued from April 2005 it was replaced by assessment, till March 2009, as provider of 'commercial and industrial construction service' on availing the benefit of notification no. 12/2003-ST dated 20th June 2003. He submits that by the time of incorporation of 'works contract service tax', as section 65(105)(zzzza) of Finance Act, 1994, on 1st June 2007, 10 of the contracts were switched for assessment under the composition scheme applicable to providers of such service. Therefore, according to him, there has been due discharge of tax liability. 3. The allegation for fastening differential tax in the proceedings is premised on the bifurcation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority to decide upon the appropriate classification, as applicable under Finance Act, 1994, instead of applying the rates sought for in self-assessment by the appellant. It is further contended by Learned Senior Counsel that the adjudicating authority placed reliance on the decision of the Larger Bench of the Tribunal in Larsen & Toubro Ltd v. Commissioner of Service Tax, Delhi [2015-TIOL-527-CESTAT-DEL-LB] was since overruled by the Hon'ble Supreme Court in Commissioner of Central Excise & Customs, Kerala v. Larsen & Toubro Ltd [2015-TIOL-187-SC-ST] to deny the authority for levy of tax on the service component in composite contracts for the period prior to the incorporation of section 65(105)(zzzza) of Finance Act, 1994. On the issue of eligibility of contracts, entered into prior to 1st June 2007, for assessments under the new entry, reliance is placed on the decision of the Hon'ble Supreme Court in Nagarjuna Construction Co Ltd v. Government of India [2012 (28) STR 561 (SC)] applied by the Tribunal in BR Kohli Construction Pvt Ltd v. Commissioner of Service Tax, New Delhi [2017-TIOL-2903-CESTAT-DEL] and in Skyline Engineering Contract (India) Pvt Ltd [2018-TIOL-1262-CESTAT-D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Construction service rendered to Maharashtra State Electricity Transmission Co. Ltd., Maharashtra State Electricity Distribution Co. Ltd., Sunil Hi-Tech, Suraj Constructions, V.B. Bhike, etc. for transmission of electricity. Vide Notification 45/2010-S.T., all taxable services rendered 'in relation to' transmission and distribution of electricity have been exempted from the purview of Service Tax. The expression 'relating to' is very wide in its amplitude and scope as held by the Hon'ble Apex Court in Doypack Systems P. Ltd. - 1988 (36) ELT 201 (SC). Therefore, all taxable services rendered in relation to transmission/ distribution of electricity would be eligible for the benefit of exemption under the said Notification for the period prior to 27-2-2010.' In re Noida Power Co Ltd, it has been held that a restricted scope could not be read into notification no. 45/2010-ST dated 20th July 2010 thus '6. In M.P. Power Transmission Co. Ltd. v. CCE, Bhopal - 2011 (24) STR 67 (Tri.-Del.) Revenue demand of Service Tax on transmission and distribution of electricity was declared unsustainable in view of Notification No. 45/2010, dated 20-7-2010. Again in Paschimanchal Vidyut Vitran N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute is only relating to their entitlement to pay the said tax in terms of the composition scheme of 2007. The Original Authority held that the appellants switched over from 'construction service' to 'works contract service' without intimating the service tax department and thus contravened the provisions of the said scheme. We note that the activities carried out by the appellants are taxable only w.e.f. 1-6-2007. In such situation, it is clear that their payment of tax in terms of composition scheme should be examined for correctness based on the said provisions only. It is seen that there is no format or prescribed specific procedure for exercising separate option under the scheme. After the introduction of new tax entry when the appellants discharged service tax in terms of the applicable provisions, it is clear their entitlement cannot be denied. We note that in terms of calculation in Annexure B to the show cause notice, the differential service tax is only relatable to denial of the said composition scheme to the appellant. We find that the denial of composition scheme by the Original Authority is mainly on the ground that the appellant cannot exercise option under the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, it was held that the works contract service shall be liable to tax only w.e.f. 1.6.2007. Applying the said ratio, the appellant is liable to service tax only w.e.f. 1.6.2007. 10. ...................We note that the Tribunal in ABL Infrastructure Pvt. Ltd. - 2015 (38) STR 1185 (Tribunal-Mumbai) ....... also noted that in absence of any specific form or procedure for option and the authority to whom such option has to be exercised, paying service tax at the composite rates in the return filed by the assessee is enough indication to show that they have opted for payment under such scheme. Though the present contract is an ongoing contract and the ld. AR relies on the decision of the Hon'ble Andhra Pradesh High Court in Narayan Company Ltd. - 2010 (19) STR 321 (AP), we note that there is no tax liability on such work contract prior to 1.6.2007 as clearly held by the Hon'ble Supreme Court in Larsen & Toubro Ltd. (supra). In such scenario, the tax liability fixed on an ongoing contract can arise only w.e.f. 1.6.2007 and the appellant can avail the composition scheme when such tax liability arises.' owing to which, the charging of differential tax by denial of eligibility for the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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