TMI Blog2022 (9) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 - SUPREME COURT] that the value of free supply material need not to be included in the gross value service in order to avail the benefit of abatement. Therefore, as per the fact since the appellant has provided the service along with material their services are clearly classified as works contract service. The appellant subsequently started paying service tax on works contract service which is not disputed by the department. The Works contract service was not taxable prior to 01.06.2007 in the light of the Hon ble Supreme Court judgment in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT] therefore, the demand prior to 01.06.2007 is clearly unsustainable as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice provided by the appellant is Works Contract Service or Commercial or Industrial Construction Service, if the service is of WCS whether the demand raised under the head of Commercial or Industrial Construction Service will survive or otherwise and whether the demand of service tax on works contract till June 2007 was payable or otherwise. 2. Shri Bishan R Shah, Learned Chartered Accountant along with Ms. Kiran Tahelani, Learned Chartered Accountant appearing on behalf of the appellant submits that there is no doubt that their contract is a composite contract which includes both material and service. The said fact has been confirmed in the SCN itself. Therefore, the demand under the Commercial or Industrial Construction Service is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the taxable service shall include the amount received towards the taxable service before, during or after provision of such service. Therefore there is no amount charged in respect of the goods which are supplied by the service recipient. Therefore, the value of goods is not to be included in the service. Accordingly, as per the settled position the appellant is otherwise entitled for the abatement to the extent of 67 % of the gross value of the service. He placed reliance on the Supreme court judgment in the case of M/s Jay Engineers Vs. Commissioner of Service Tax, Ahmedabad 2019 (5) TMI 156- CESTAT Ahmedabad. He further submits that levy of service tax on works contract service till 01st June, 2007 was unconstitutional in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 are mutually exclusive and cannot be imposed as held in the following judgments: CCE Vs. Silver Oak Gardens 2008 (13 ) STT 64 (CESTAT SMB) Remac Marketing 2009 (18) STT 306 CESTAT Pannu Property Dealer 2009 (20) STR STT 78 CESTAT Grewal Trading Co. 2009 (23) STT 384 (CESTAT) CCE Chandigarh Vs. City Motors 2011 (30) STT 191 ( Punj. ) 2.4 He further submits that Section 78 of the Finance Act, 2008 inserted with effect from 10.05.2008 that if the penalty payable under section 78, the provision of section 76 shall not apply, for this reason also penalty under Section 76 is not imposable. 3. Shri R. P Parekh, Learned Superintendent (AR) appearing on behalf of the Revenue reiterated the finding of the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the adjudication order was passed classifying the service under Commercial or Industrial Construction Service whereas the service of the appellant is classified under works contract service. On this fact the demand raised under Commercial or Industrial Construction Service will not sustain being proposed and confirmed under the wrong classification whereas the services are correctly classifiable under works contract service. On the issue where duty demand raised under the wrong classification this tribunal in the case of Real Value Promoters Limited (Supra) held that the composite contract can be subjected to service tax only under works contract servoce post 01.06.2007 and any demand raised under CICS/CCS on such composite contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
