TMI Blog2022 (8) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 to 30th September 2008 the narrow confines of the SCN do not permit confirmation of demand of tax on any service other than commercial or industrial construction service'. The instant demand of service tax under the category of Commercial or Industrial Construction cannot be sustained - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.70489 of 2013 - FINAL ORDER NO. 75447/2022 - Dated:- 8-8-2022 - SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) AND SHRI P.ANJANI KUMAR, MEMBER (TECHNICAL) Shri Rajeev Agarwal, Advocate for the Appellant (s) Shri K.Chowdhury Shri S.Mukhopadhyay, both Authorized Representative for the Respondent (s) ORDER The instant appeal has been filed by M/s. Simplex Projects Limited ( hereinafter referred to as the Appellant) against the Order-in- Original dated 18.02.2013 passed by the Ld. Commissioner of Service Tax, Kolkata, whereby he has confirmed the demand of service tax under the category of Commercial or Industrial Construction Services for the period from 2006-07 to 2010-11. 2. The facts of the case in brief are that the Appellant is engaged in providing construction services and is also registered w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsen Toubro Ltd. [2015 (39) S.T.R. 913 (S.C.)] to submit that works contract services cannot be taxed under Commercial Construction Service. He also relied on the Tribunal decision in the case of URC Construction (P) Ltd. vs. CCE, Salem [2017 (50) S.T.R. 147 (Tri-Chennai)] wherein it has been held that when no proposal is made in the SCN to classify the service under the category of Works Contract Service , the demand of service tax cannot be sustained for the period subsequent to 01.06.2007. 5.1 With regard to allegation that the construction is for commercial purpose, he submitted that the construction activities has been undertaken by the Appellant which have been funded by the Centrally Sponsored Scheme , which facts are not in dispute in the impugned adjudication order. He submitted that the construction activities were undertaken pursuant to the budgetary resources of the Government and placed at the disposal of the Municipal Bodies. By placing reliance on several decisions of the Tribunal, he submitted that the construction activities undertaken by the Government or a Municipality cannot be construed to be primarily for commercial purpose and therefore no service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supra) as below:- 4. The primary contention of learned Counsel for the appellant is that the decision of the Hon ble Supreme Court in Commissioner of Central Excise and Customs, Kerala v. Larsen Toubro Ltd. [2015 (39) S.T.R. 913 (S.C.)] has settled the law to the effect that composite contracts involving services and goods covered under four categories, i.e., erection, commissioning and installation , construction of building for commerce and industry , construction of residential complex and turnkey projects , under Section 65(105)(zzzza) are liable to tax only with effect from 1st June, 2007. It is also contended that, at the adjudication stage, they had taken the plea that they being providers of works contract service were not liable to tax as providers of commercial or industrial construction service . This plea was not accepted by the adjudicating authority who proceeded to confirm the demand. Their further contention is that even though they are liable to tax with effect from 1st June, 2007 the show cause notice had not invoked the taxable entry rendering the determination of tax liability to be contrary to the provisions of Section 73 of the Finance Act, 1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of both goods and services. 8. We note that the findings of the adjudicating authority do accept that supply of goods were involved in the contracts and that he was merely sceptical that VAT liability had been discharged on the goods supplied in the contract; whether VAT liability was discharged on the goods or not is irrelevant in the light of the decision of the Hon ble Supreme Court in re Larsen Toubro and Ors. We, therefore, have to merely determine the scope of taxability of works contract service rendered before and after 1st June, 2007 under the Finance Act, 1994. 9. The Hon ble Supreme Court in re Larsen Toubro Ors. has decided thus 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 ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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