TMI Blog2024 (1) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... iable on the service tax not paid - Recovery alongwith interest and penalty - extended period of limitation - HELD THAT:- On going through the order in original, it is found that the learned commissioner of the view the services are covered under works contract service but no elaboration was given as regards the exemption, valuation and ingredients of the service i.e. works contract service. In the said service, the main ingredients are that of construction BRTS, Ahmedabad and other for construction of a Conventional Centre, Auditorium and Exhibition Hall for Gujarat University. However, the learned Commissioner has not given clear findings why the services are not exempted on basis of valuation. These are the main factor which decide whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd failed to furnish ST 3 returns; Section 75 in as much as they failed to pay the interest leviable on the service tax not paid; and hence, Service Tax not paid by them is recoverable from them under Section 73(1) by invoking the extended period of five years, along with interest under Section 75 and penalty as provided under Sections 76,77 and 78 is imposable upon them. The show cause notice was adjudicated and demand of Service Tax of Rs. 1,40,39,781/- confirmed vide OIO dated 11.05.2015. 2. The appellant have taken two projects; one for construction of Bus Shelters for BRTS, Ahmedabad and other for construction of a Conventional Centre, Auditorium and Exhibition Hall for Gujarat University. BRTS project was given by main contractor M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -commercial in nature are out of purview of Service Tax. Referring to Article 243W read with Twelfth Schedule of the Constitution of India, 1949, he submits it cast responsibility on Municipality. Hence, it is sovereign function of Municipality and cannot be treated as Business or Commerce. Refers to Board s Circular No. 80/10/2004-S.T. dated 17-9-2004 and states that the contracts awarded to appellant are given specific exclusion from the preview of Works Contract Service. Vide TRU Circular No. 80 /10 / 2004- ST dated 17.09.2004 at para 13.2 it is clarified that The leviability of service tax would depend primarily upon whether the building or civil structure is ''used, or to be used'' for commerce or industry. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehru National Urban Renewal Mission or Rajiv Awaas Yojana. Construction of Bus Shelters and Railing for Ahmedabad BRTS Corridor under JNNURM or RAY is pertaining to original work and hence not liable for service tax. 7. He further submits for Gujarat University project M/s. P C Snehal Construction Co. paid amount as per RA Bill after deducting service tax, duties, other levies, etc. M/s. P C Snehal Construction Co. deposited service tax on their behalf to the Central Government account as the said amount was deducted from their RA bills. The copy of letter is submitted on 15.12.2010 along with challan as evidence of payment of service tax. Hence, service tax already paid and no further service tax can be demanded. The entire service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be subjected to tax is the value of taxable services and not goods portion. Even where a service is taxable under Works Contract Service, only the service portion in execution of a works contract is taxable in terms of provisions of Rule 2A of Service Tax (Determination of Value) Rules, 2006 and not the entire amount of works contract. The adjudicating authority has conveniently adopted the entire works contract value as the value of taxable service, which is excessive, high-pitched and reflects revenue zeal. Under OIO Service Tax is demanded on the full value of work executed which is absolutely illegal and unfair. 10. He further stated that: The Hon ble Apex Court in 2015(39) STR 913 (SC) decided that in case of indivisible works contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice. In the said service, the main ingredients are that of construction BRTS, Ahmedabad and other for construction of a Conventional Centre, Auditorium and Exhibition Hall for Gujarat University. However, the learned Commissioner has not given clear findings why the services are not exempted on basis of valuation. These are the main factor which decide whether the service is taxable or not. Therefore, this aspect needs to be reconsidered. 14. We find that although the show cause notice refer to the charge of intention to evade payment of tax on the part of the appellant, no concrete evidence is forthcoming to substantiate this charge against the appellant. This aspect has not been fully examined and discussed in any of the orders pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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