Service Tax
TRT-2025-
Cestat New Delhi
Date:-02-12-22
In:-
Issue Favourable to Tax Payer ?:-
Order date – 02 December 2022
Facts –
- The Appellant, M/s. Avas Vikas Ltd., is engaged in construction services, construction of commercial and industrial buildings, civil structure services or/and construction of complex services.
- Show Cause Notice dated 23.04.2010, issued proposing to recover service tax amounting to Rs.22,09,97,113/- from the appellant under the head “Construction Services” [Section 65 (105) (zzq)] up to 16.06.2005 and under the head “Commercial and Industrial Construction Services” [Section 65 (105) (zzzh)] after this date along with the interest and the penalties under Section 70, 76, 77 and 78 of the Finance Act, 1994.
Issue –
- Whether the adjudicating authority has rightly issued the Corrigendum to carry out major changes in the impugned Order-in- Original?
Order –
- The Tribunal relied on the decision of Hon’ble Apex Court in the case of Commissioner of Central Excise, Kerala Vs. Larsen and toubro Ltd. [2015 (39) STR 913 (SC)], and the tribunal held that the entire demand for the period prior to July 2007 is liable to be set aside. For the period post July 2007, works contracts could be changed only under “Works Contract Service” [Section 65 (105) (zzzza)] and there is no demand under this head at all. Therefore, the demand for this period also cannot be confirmed.
- In respect of demand for the normal period, as already noted above, the admissions/undisputed facts on record are sufficient to show that the appellant has not provided any service at all. The services were being provided by the sub-contractor appointed by the appellant. In the said circumstances, the service tax liability cannot be fastened upon the appellant that too for such services which were purely for non-commerce/industry purposes.
- As already discussed, the order of imposition of duty has been set aside as being not warranted for services being rendered for non-commerce purpose and otherwise were not reduced by appellant, question of remanding the matter does not arise.
- The Appeal filed by assessee stands allowed and the appeal filed by the department stands partly allowed where the question raised has been determined, however, the prayer for remand of matter is rejected.
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