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TMI Blog2023 (6) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... yay , Authorized Representative for the Revenue ORDER Per : P. K. CHOUDHARY : Service Tax Appeal No.158 of 2011 has been filed by M/s. Raitani Engineering Works Pvt.Ltd. against Order-in-Original No.ST/SHILLONG NO.01/2011 dated 31.01.2011 passed by the Ld.Commissioner of Central Excise, Shillong, whereby he has confirmed demand of Service Tax of Rs.47,48,716/- for the period 2005-06. In the same adjudication order, demand of Service Tax of Rs.14,39,005/- along with interest and penalty have been confirmed against M/s. National Building Construction Corporation Ltd. (NBCC) being Service Tax Appeal No.127 of 2011. Since both the Appeals are arising by the adjudication order dated 31.01.2011, the same are taken up together for disposal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quarter building, Guest House building, over-head tank and R. wall etc. are being constructed for the local Govt. bodies, and hence, such activity would be considered for commercial purpose. The Ld.Commissioner rejected submissions made by both the Appellants that subject services, if at all taxable, would be liable to be taxed under the category of 'Works Contract Service' which has not been proposed in the impugned Show Cause Notice. 4. Shri Biswajit Mukherjee, Ld.Advocate, appeared for M/s. Raitani Engineering Works Pvt.Ltd. whereas Shri J. Chattopadhyay Ld.Authorized Representative appeared for the Revenue. None appeared for NBCC. 5. The Ld. Advocate appearing for M/s. Raitani Engineering Works Pvt.Ltd. submitted that since the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 13.03.2008 issued by the Ld.Joint Secretary, MAHUD department, State Government of Manipur, addressed to NBCC wherein it has been stated that the market complexes constructed by the Government out of its budgetary resources and placed at the disposal of Municipal Bodies for utilization in the service of local people on recovery of user charges as licence fee cannot be described as 'Commercial Construction'. Copy of the said letter had also been sent to the Directorate General of Service Tax, Mumbai. On the basis of above, he also contested the demand on the ground of limitation in the absence of the willful suppression or fraud with intent to evade payment of service tax. On the same count, he contested the imposition of penalty. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. It was submitted by the learned Counsel that further arguments should be contingent upon a decision on these two issues. 5. Learned Authorised Representative was of the opinion that the facts of the appellant are distinguishable from the facts relating the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f taxability as 'works contract service'. We note the contention of learned Counsel that the adjudicating authority had perused the contracts on which the demand was raised in the show cause notice and rendered a clear finding, including on the allegation of abatement availed in Notification No. 15/2004-S.T., dated 10th September, 2004 and Notification No. 01/2006, dated 1st March, 2006; the allowance of abatement is a clear demonstration of ascertainment that supply of goods did form a part of the contract. Therefore, we have no hesitation in accepting the said contracts in dispute to be composite contracts for supply of both goods and services. 8. We note that the findings of the adjudicating authority do accept that supply of goods we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the present cases. It will also be noticed that no attempt to remove the non-service elements from the composite works contracts has been made by any of the aforesaid Sections by deducting from the gross value of the works contract the value of property in goods transferred in the execution of a works contract.' 10. In view of this specific decision and the admitted claim of the appellant that they are not providers of 'commercial or industrial construction service' but of 'works contract service', no tax is liable on construction contracts executed prior to 1st June, 2007. 11. Insofar as demand for subsequent period till 30th September, 2008 is concerned, it is seen that neither of the two show cause notices adduce to levia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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