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TMI Blog2022 (1) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the appellant for construction of Paryatak Bhavan of the Andhra Pradesh Tourism Development Corporation Ltd.[ the Tourism Development Corporation] 2. The appellant is engaged in the construction activity and was awarded the contract of construction the Paryatak Bhavan (multi-storeyed building with parking for tourism development) as a sub-contractor for M/s. Ramky Infrastructure Limited [RIL] on back to back basis. 3. RIL had entered into an Agreement dated 29.11.2003 with the Tourism Development Corporation which, in turn, sub-contracted the construction work to the appellant by contract dated 15.12.2003. The consideration received by the appellant towards this turnkey contract was a lumpsum amount after deducting 2% of the gros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod post 01.06.2007 and so the same is also liable to be set aside. The contention is that once it is held to be a 'works contract' prior to 01.06.2007, the demand under the category of 'construction service' or 'commercial or industrial construction service' would not survive for the reason that the demand was not made under the category of 'works contract'; and (iii) The extended period of limitation could not have been invoked and interest and penalty could not be imposed. 6. Shri C. Mallikarjun Reddy, learned authorized representative appearing for the Department has, however, supported the impugned order and contended that it does not call for any interference in this appeal. 7. The submission advanced by the learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transport of fluids, heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or (b) construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or (c) construction of a new residential complex or a part thereof; or (d) completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to (b) and (c); or (e) turnkey projects including engineering, procurement and construction or commissioning (EPC) projects;" 10. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self so that the cost of establishment of the contractor is bifurcated into what is relatable to supply of labour and services. Similarly, all other expenses have also to be bifurcated insofar as they are relatable to supply of labour and services, and the same goes for the profit that is earned by the contractor. These deductions are ordinarily to be made from the contractor's accounts. However, if it is found that contractors have not maintained proper accounts, or their accounts are found to be not worthy of credence, it is left to the legislature to prescribe a formula on the basis of a fixed percentage of the value of the entire works contract as relatable to the labour and service element of it. This judgment, therefore, clearly and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed separately as such. ******* 24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding, cannot be sustained. 13. This is what was observed by the Supreme Court in Hindustan Polymers Company Limited vs. Collector of Central Excise, Guntur [1999 (106) ELT 12 (SC)] and the relevant portion is reproduced below : "6. While we appreciate the Tribunal's desire to do complete justice and mould the relief in that direction, we think that, in the circumstances, the Tribunal should not, in this case, have passed an order which proceeded upon a basis that is altogether different from that of the demand made upon the appellants. That is not "moulding" relief. The demand that was made upon the appellants was under Tariff Item 68 and it proceeded upon the basis that there was a process of manufacture of coloured polystyrene from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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