TMI Blog2023 (6) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... e even after 01.06.2007 cannot be taxed under Construction of Complex Service under Section 65 (105) (zzh) read with Section 65 (30a) of the Finance Act, 1994. Similarly, in the case of Srishti Construction vs. Commissioner of Central Excise ST, Ludhiana [ 2017 (12) TMI 172 - CESTAT CHANDIGARH] , the Division Bench of this Tribunal has also set-aside the demand of service tax under Works Contract Service and has also held that the extended period of limitation is not invokable and allowed the appeal of the appellant with consequential relief, if any, as per law. The impugned orders are set aside - appeal allowed. - Service Tax Appeal No. 560 Of 2011 with Service Tax Appeal No. 798 Of 2011 and Service Tax Appeal No. 1743 Of 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 19.10.2007 OIA No. 332/BK/RTK/ 2011 dated 30.08.2011 36/ADC/RNR/ST /2009 dated 29.10.2009 ----do---- 6,56,523/- 4. For the sake of convenience, we take the facts of Appeal No. ST/560/2011 in the matter of Bajrang Lal Gupta vs. C.C.E.-Gurgaon. 5. Brief facts of the case are that the appellant is a proprietorship concern having its place of business at Vivekanand Nagar, Jind, Haryana and they are engaged in construction of residential houses on contract basis at various sites of Housing Board of Haryana. During the period in dispute from 16.06.2005 to 31.03.2007, the appellant has received a sum of Rs. 3,24,72,988/- which inter-alia includes the value of mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on behalf of the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and law. He further submitted that the impugned order is contrary to the binding judicial precedents. He also submitted that it is an admitted fact that the contract between the appellant and the Housing Board of Haryana involves both supply of material and labour and is rightly classifiable under the category of Works Contract Services rather than Construction of Residential Complex Service . He further submits that the works contract service was not taxable prior to 01.06.2007 in view of the judgement of Hon ble Apex Court in the case of CCE vs. Larsen Toubro Limited as reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the works contract service came into existence from 01.06.2007, therefore the demand for the entire disputed period is liable to be dropped as indivisible contracts are specifically made taxable under the category of Works Contact Services . He also submitted that it is a well settled legal position that services which are classifiable under the specific taxable category of services, the same cannot be made taxable under any other taxable category and for this submission, he relied upon the decision of the Tribunal, Chennai Bench in the case of Diebold Systems (P) Ltd. vs. CST, Chennai reported as 2008 (9) STR 546 (Tri.-Chennai). 14. He also submitted that the construction of the individual residential units is not taxable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. It is clear from the perusal of the show cause notice that as culled out above that what was proposed was to impose Service Tax amount of Rs. 90,96,501/- u/s 73(1)(a) of the Finance Act. In view of the explanation submitted in response to the show cause notice, the original authority held that the tax could not have been leviable under the said Act u/s 73(1)(a). However, the original authority proceeded to impose the tax under the head Business Auxiliary Service which is taxable u/s 73(1)(d) and 73(1)(e). The fact that there was no proposal in the show cause notice to include the income as auxiliary business service is indisputable in view of the contents of the show cause notice and therefore in the absence of any notice issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of services simpliciter. c. For activities of construction of new building or civil structure or new residential complex etc. involving indivisible composite contract, such services will require to be exigible to service tax liabilities under Works Contract Service as defined under section 65(105)(zzzza) ibid. d. The show cause notices in all these cases prior to 1.6.2007 and subsequent to that date for the periods in dispute, proposing service tax liability on the impugned services involving composite works contract, under Commercial or Industrial Construction Service or Construction of Complex Service, cannot therefore sustain. In respect of any contract which is a composite contract, service tax cannot be de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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