TMI Blog2024 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... d the same in ST-3 returns. Appellant paid the tax and filed ST-3 returns under the category of Works Contracts. The provisions of work contract composition scheme as well as Rule 2A of Service Tax Valuation Rules are specifically made applicable to the works contract service, subject to fulfilment of various conditions so that the tax liability can be restricted only to the service portion of the contract. Admittedly, no service tax can be levied on sale of goods or transfer of goods in property. In fact, the Hon ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT] held that prior to 1-6-2007 there is no machinery provisions for levy and assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gajera, Advocate for the Appellant Shri Anoop Kumar Mudvel, Superintendent (AR) for the Respondent ORDER This appeal is filed by M/s Crystal Metals Pvt. Ltd. against the Order-In-Appeal No. AHM-SVTAX-000-APP-092-14-15 dated 15.07.2014 passed by the Commissioner (Appeals), Ahmedabad. 1.1 The brief facts of the case are that during the scrutiny it was noticed by the department that appellant had neither filed any ST-3 returns nor paid Service tax during the period from September 2007 onwards. The authorized person of the appellant has stated that the appellant is engaged in the activity of Commercial or Industrial construction . That they have paid Service tax regularly from October 2007 to March 2010; that they have not paid the service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and actual amount of Service tax payable it appeared that the appellant was liable to pay service tax to the tune of Rs. 57,06,337/- during the period between 01.10.2007 to 31.03.2012, whereas they had discharged the Service tax liability only to the extent of Rs. 10,18,636/- under the category of Works Contract Services instead of Commercial or Industrial Construction Service resulting to short payment of service tax to tune of Rs. 46,87,701/. Accordingly, show cause notice dated 05.03.2013 was issued to the appellant proposing recovery of Service tax short paid, alongwith interest at appropriate rate under Section 75 of the Act and imposition of penalties under Section 76, 77 78 of the Act. In Adjudicating, Additional Commissioner vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glass, aluminium items alongwith labour. Show cause notice at para 6 records the evidence produced by the appellant to show that activity of the appellant involves supply of material too. Further, appellant has discharged applicable works contract tax for the entire period in dispute. The Appellant has categorized the services as works contract under VAT regime as well. Thus, appellant have correctly classified its activity as works contract service and discharged applicable service tax. He placed reliance on the following judgments:- Vinum Architects Consultants Vs. CCE ST. Chandigarh -2019(9)TMI 463-CESTAT Chandigarh Incredible Unique Buildcon Pvt. Ltd. 2022(65)GSTL 377 (Tri. Del.) Sem Construction -2021(44)GSTL 385 (Tri. Ahmd.) 2.2 He al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the issue of the taxability of the activity itself was not free from doubt during the relevant period and it was only by judgment of Hon ble Supreme Court in the case of L T -2015(39)STR 913(SC), that the said issue was settled. In that view, it cannot be alleged that the appellant had intended to evade tax. In the circumstance, the entire demand is barred by period of limitation provided under Section 73(1) of the Act. 3. Shri A.K. Mudvel, Learned Superintendent (AR), appearing on behalf of the Revenue, reiterates the findings of the impugned order. 4. We have heard both sides and perused the record. We find that the show cause notice have been issued to appellant holding that the activity conducted by them falls under the category of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Keeping this in view, we find that the decision of the Ld. Commissioner to confirm service tax liability on whole contracts value is not legally sustainable. We find that the eligibility of the appellant either for the composition or for valuation under Rule 2A of the Valuation Rules are to be examined afresh by the Ld. Adjudicating Authority. 4.2 Further we also find that the entire amount has been confirmed without indicating the breakup of the amount attributable to the goods and services rendered by the appellant in the present matter. 4.3 In view of above, the impugned order is set aside and the matter is remanded to the Ld. Adjudicating authority that to ascertain if VAT /Sales Tax has been paid for all the contracts under the categ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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