TMI Blog2023 (4) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In view of the facts the show cause notice should have been issued within the normal period of one year as prescribed under Section 73(1), whereas the show cause notice for the period 16.06.2005 to 30.09.2007 was issued on 02-03-2010 i.e. after prescribed limit of one year - there is no suppression of fact on the part of the appellant. Therefore, the demand raised in the show cause notice is clearly time-barred. Appeal allowed - decided in favour of appellant-assessee. - Service Tax Appeal No. 10016 of 2013-DB AND Service Tax Appeal No. 10112 of 2013-DB - Final Order No. A/10798-10799/2023 - Dated:- 6-4-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri. Rahul Gajera, Advocate for the Appellant Shri. Tara Prakash, Deputy Commissioner (AR) for the Respondent ORDER Both sides are in appeal against the impugned order. As both the appeals are arising out of a common order-in-appeal No. 235/2012(STC)/AK/Comm.(A)/Ahd. Dtd. 28.09.2012, therefore both the appeals are taken up for disposal by a common order. 2. The brief facts of the case are that M/s. Crystal Metals Pvt. Ltd. is engaged in the business of providing taxable se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax on the gross amount received for providing the said taxable service. It also further appeared that the benefit of paying service tax @2% as works contract service is also not available to the Appellant in view of the clarification under circular No. 98/1/2008-ST issued F.No. 345/6/2007-TRU dtd. 04.01.2008 wherein it has been specifically stated that in respect of revision of classification to works contract service from the respective classification and payment of service tax from the amount received on or after 01.06.2007 under the composition scheme, that vivisecting a single composite service and classifying the same under two different taxable services depending upon the time of receipts of the consideration is not legally sustainable. Besides, the appellant had never approached the department for any amendment had inquired them. Thus it appears that, the said service provider was liable to pay service tax during the period 16.06.2005 to 30.09.2007 to the tune of Rs. 20,79,896/-. Whereas they have only discharged service tax liability to the tune of Rs. 5,99,371/- and has thereby short paid service tax to the tune of Rs. 14,80,525/-. Accordingly Appellant was issued show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant activity was ab-initio works contract and hence service tax was payable only from 01.06.2007. 6. Without prejudice, he also submits that Ld. Commissioner (Appeals) has failed to appreciate that the activities undertaken by the appellants were not merely completion and finishing. It involved substantial works because the wall erected from structural glazing was not supported by the bricks walls. In the absence of the facade, the building will only be a structure of beams and pillars without outer walls. The building would not come into existence without the outer wall- even if such wall is of glass or aluminum. Therefore, where the glazing in not supported by an inner wall, the glazing cannot be said to be completion or finishing but it has to be considered as part of the construction of the building. The Ld. Commissioner (Appeals) failed to appreciate the activity of appellant. The building will not come into existence if the outer wall is not constructed. Therefore, where the outer wall comprises of the glazing alone, the glazing work is not a completion or finishing work. The lower authorities have erred in ignoring the submission of appellant and further in holding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to change the category of service from construction of complex service to works contract service . Appellant by their letter dtd. 30.06.2007 had requested the Range officer to amend the category of services to Execution of Works Contract . Therefore it cannot be held that the appellant did not inform the department about their intention to opt for change of service category. 11. The Ld. Authorized Representative Shri Tara Prakash appearing for the Revenue opposed the contention of Ld. Counsel and reiterated the findings made by the Ld. Commissioner. 12. He also reiterated the ground of appeal of department and submits that Ld. Commissioner (Appeals) has committed gross error of law by setting aside the penalty under Section 76 of the Finance Act, 1994. 13. We have carefully considered the submissions from both the sides and perused the records. On going through the entire facts of the case we are of the view that the case can be disposed of on the ground of limitation itself. 14. We find that the issue involved in this case is regarding the demand of differential amount of service tax for the period 16.06.2005 to 30.09.2007 on the ground that the appellant has ava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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