P & H Associates Vs Commissioner of Central Excise & ST (CESTAT Ahmedabad)
Summary: The appeal concerned the eligibility of P & H Associates for 67% abatement of service tax under Notification No. 1/2006-ST dated 01.03.2006 for the period April 2008 to June 2012. The appellant was registered under Commercial and Industrial Construction Service (CICS), Architecture Service and Interior Decorator Service and had discharged service tax on 33% of the gross value after claiming 67% abatement.
During audit and scrutiny of ST-3 returns, the department observed that the appellant had executed works involving false ceiling, partitions, flooring, modular systems, painting, carpeting, electrical connected works, wall panelling, supply and fixing of furniture, brick works and other activities. According to the department, these activities were in the nature of completion and finishing services covered under Section 65(25b)(c) of the Finance Act, 1994 and were therefore excluded from the benefit of Notification No. 1/2006-ST. The department also alleged that the appellant had not produced sufficient site-wise or bill-wise documentary evidence establishing the value of goods and materials used in individual contracts for purposes of Notification No. 12/2003-ST.
A show cause notice dated 04.07.2013 was issued proposing recovery of differential service tax with interest and penalties. The original authority confirmed the demand, interest and penalties by order dated 04.10.2013. The appellant challenged that order before the Tribunal. By Final Order No. A/11167/2014 dated 02.07.2014, the Tribunal set aside the order and remanded the matter to the adjudicating authority to verify and scrutinize the documents concerning the appellant’s claim for benefit of Notification No. 12/2003-ST, expressly keeping all issues open.
In the denovo proceedings, the original authority again confirmed the service tax demand, rejected the abatement claim and imposed penalties. The appellant therefore approached the Tribunal again.
Before the Tribunal, the appellant contended that its activities were composite works involving both services and materials and that the contracts were in substance works contracts. It submitted that approximately 78-80% of the total contract value represented material purchases, while the balance represented labour charges and profit. The appellant also relied upon payment of VAT on the material component. It contended that the works involved substantial construction, renovation, restoration and modification of civil structures and were not merely completion and finishing services.
The appellant also relied upon the decision in Ocean Interior Limited, reported as 2019 (11) TMI 124 (CESTAT Chennai), which, according to the submissions recorded in the order, had extended the benefit of Notification No. 12/2003-ST in materially similar circumstances. The Tribunal noted that the decision had subsequently been confirmed by the Hon’ble Supreme Court, as reported at 2023 (9) TMI 818 (SC).
The department, on the other hand, submitted that the appellant had originally paid service tax under CICS and had sought classification under Works Contract Service only at the adjudication stage. According to the department, the activities were finishing and completion services and the appellant was not eligible for the abatement. It was also submitted that the appellant had not produced site-wise or bill-wise documentation for the materials allegedly used in execution of the work orders.
The Tribunal considered whether the appellant was eligible for 67% abatement under Notification No. 1/2006-ST. It reproduced the definition of “Commercial or Industrial Construction” under Section 65(25b) of the Finance Act, 1994. The Tribunal observed that construction activity relating to repair, alteration, renovation or restoration falls within sub-clause (d) of the definition and that construction of pipelines or conduits falls within sub-clause (b).
On examining the sample work orders, the Tribunal found that the appellant had used goods and materials for execution of the works. It further held that the works could not be characterised entirely as completion or finishing services. The Tribunal also considered the observations of the adjudicating authority that the appellant had purchased substantial quantities of raw materials but had failed to link the materials to individual clients.
The Tribunal found the adjudicating authority’s approach erroneous, particularly because the Tribunal’s earlier order had specifically directed verification and scrutiny of the documents concerning the abatement claim. The Tribunal observed that the work orders demonstrated composite construction activity involving goods and materials.
The Tribunal relied upon the reasoning in Ocean Interior Limited, where it was observed that where sufficient evidence established purchase of materials for execution of work and payment of VAT on such goods, service tax could not be demanded on the entire gross amount. The Tribunal noted that, in the present case, the appellant had produced VAT returns demonstrating payment of VAT on materials used in execution of the work orders.
The Tribunal also considered Raj Inter Décor Private Limited, reported as 2023 (7) TMI 1180 (CESTAT Chandigarh), in relation to eligibility for 67% abatement under Notification No. 01/2006-ST in composite construction services. The decision was considered in support of the proposition that composite contracts could qualify for the applicable abatement.
The Tribunal further considered Wipro GE Medical Systems P Limited, reported as 2009 (14) STR 43 (Bang.), where the issue of abatement concerning the cost of materials used for maintenance, management and repair services was examined. The Tribunal noted that the decision had been upheld by the Hon’ble Supreme Court in Commissioner v. Wipro GE Medical Systems Pvt. Limited, reported as 2012 (28) S.T.R. J44 (S.C.).
After considering the evidence placed on record and the decisions referred to in the order, the Tribunal held that the appellant had used goods and materials in executing the construction work. It rejected the department’s allegation that the works were entirely completion and finishing services as factually and legally incorrect.
Accordingly, the Tribunal held that the appellant was eligible for the abatement. It concluded that the demand could not be sustained, set aside the impugned order and allowed the appeal with consequential relief, if any.
Cases Discussed
- Ocean Interior Limited, 2019 (11) TMI 124 (CESTAT Chennai) — considered on the eligibility of abatement where materials were purchased for execution of composite work and VAT was paid on the material component; the decision was noted as having been confirmed by the Hon’ble Supreme Court.
- Raj Inter Decor Private Limited Vs Commissioner of Central Excise, 2023 (7) TMI 1180 (CESTAT Chandigarh) — considered in relation to eligibility of 67% abatement under Notification No. 01/2006-ST for composite construction services.
- Wipro GE Medical Systems P Limited, 2009 (14) STR 43 (Bang.) — considered on abatement of the cost of materials used in providing maintenance, management and repair services; the decision was noted as having been upheld by the Hon’ble Supreme Court.
- Commissioner v. Wipro GE Medical Systems Pvt. Limited, 2012 (28) S.T.R. J44 (S.C.) — referred to as the Hon’ble Supreme Court decision upholding the Tribunal’s decision in Wipro GE Medical Systems.
- Safety Retreading Co. (P) Ltd. Vs. Commissioner of C.Ex., Salem, 2017 (48) S.T.R. 97 (S.C.) — reproduced as a precedent relied upon in the Ocean Interior decision concerning levy of service tax only on the service component where the material component had been subjected to sales tax.
- Singh Sales and Services Vs. Commr. of Cus., C.Ex. & S.T., Allahabad, 2017 (52) S.T.R. 38 (Tri. – Allahabad) — reproduced as a precedent in Ocean Interior concerning exclusion of the value of goods or spare parts supplied and used for providing services from taxable service value.
- Sobha Developers Ltd. Vs. Commissioner of C.Ex. & S.Tax, Bangalore, 2010 (19) S.T.R. 75 (Tri. – Bang.) — reproduced as a precedent in Ocean Interior concerning material value sought to be included on the basis that goods were consumed in provision of service rather than sold.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
Brief facts are that appellant is registered with the service tax Commissionerate under the category of Commercial and Industrial Construction Service (CICS for short), Architecture service and Interior Decorator service. In the course of audit of accounts and scrutiny of ST-3 returns it was found that during the period April 2008 to June 2012, the appellant had availed abatement of 67% under Notification No. 1/2006-ST dated 01.03.2006 and discharged service tax only on 33% of the gross value charged by them on their clients and paid service tax under the category of Commercial and Industrial Construction Service. On scrutiny of sales invoices and various contracts it was noted that the works executed by the appellant was in the nature of false ceiling, partitions, flooring, modular systems, painting, carpeting, electrical connected works wall paneling, supply and fixing of various furniture, brick works etc. It appeared to the department that the works executed by the appellant would fall under „Finishing and Completion work‟ coming under CICS, as described under sub-clause (c) of Section 25(b) of Finance Act, 1994. The Notification No. 1/2006-ST dated 01.03.2006 provides under column 4 that the abatement/ exemption shall not apply to in cases where the services are only completion and finishing services. The department was of the view that appellant is not eligible for 67% abatement, and has to discharge service tax on the entire gross amount charged by them. Further Notification No. 12/2003-ST dated 20.06.2003 (with effect from 01.07.2003) provides abatement/ exemption equal to the value of goods and materials sold by the service provider to the recipient of service subject to the condition that there is documentary proof for the value of materials and goods used. The appellant failed to produce documentary evidence and did not maintain any site wise/ bill wise records of purchase and sale. The appellant then has to pay service tax on the entire amount collected from the client without availing abatement. Show cause notice dated 04.07.2013 was issued to the appellant for the period April 2008 to June 2012 proposing to demand the differential service tax along with interest and for imposing penalties.
1.1 After due process of law, the original authority vide OIO No. VAD-EXCUS-001-COM-10-13-14 dated 04.10.2013 confirmed the demand, interest and imposed penalties. Against such order the appellant had earlier filed Appeal No. ST/13894/2013 before the Tribunal raising the ground that though enough documentary evidences were produced by the appellant to show that goods and materials were purchased and used in executing the works, the adjudicating authority failed to consider these evidences and thus has wrongly rejected the claim of abatement. The Tribunal vide Final Order No. A/11167/2014 dated 02.07.2014 remanded the matter directing the Adjudicating Authority to verify and scrutinize the documents with regard to claim of abatement and pass fresh order. The relevant Para of the said Final Order of Tribunal reads as under:-
“5. In the interest of justice, we find that the adjudicating authority should be given an opportunity to verify and scrutinize the documents as to the claim of the appellant for benefit of Notification No. 12/2003-ST. Without expressing any opinion on the merits of the case, keeping all the issues open, we set aside the impugned order and remand the matter back to the adjudicating authority to reconsider the issue afresh, after following the principles of natural justice.”
1.2 Pursuant to the remand, in denovo adjudication, the original authority vide order impugned herein has again confirmed the demand of service tax, interest and rejected the claim of abatement of the appellant. Penalties were also imposed. Aggrieved by such order, the appellant is once again before the Tribunal.
2. The Learned Counsel Shri Saurabh Dixit appeared and argued for the appellant. It is submitted that the issue involved in the present appeal is whether the activity undertaken by the Appellant is covered under the works contract Service or not. Further, an ancillary issue involved is whether during the material period, the appellant was eligible for exemption benefit under Notification No. 12/2003-ST in respect of various sales made by them during the course of providing composite works contract services.
2.1 It has been alleged by department that the Appellant had undertaken the construction activity in the nature of constructing wall, false ceiling, partitions, floorings, modular systems, painting, carpentry, electrical fittings, interior finishing, supply and fixing of various furniture, plastering, bricks works etc., which are mere completion and finishing service activities and hence, not eligible for abatement benefit under Notification No. 1/2006-ST. However, the fact remains that the Appellant had actually undertaken substantial activity of construction, renovation, restoration and modification of civil structure. Be that as it may, the material consumption itself during such composite works contract activity was much more than 67% of the gross amount charged. The Appellant had provided works contract service, and even paid VAT, which is not in dispute in the present proceedings. The work undertaken by the Appellant is a composite work involving Service and material. In fact, approx. 78-80% of total contract value consists of the material purchase value itself, while balance 20-30% value composes of labour charges and profit of the Appellant. The Appellant had paid VAT on the material component and the same is not under dispute. It is asserted that the impugned order itself do not dispute that the present contracts are composite, and there is no question of levying Service Tax on the entire value of the contract, which obviously include substantial value for goods for which the Appellant has paid applicable VAT. After 01.06.2007, these transactions can be taxed only under the category of “Works Contract Service” wherein the appellant had an option to pay service tax @ 2% under Works Contract Composition Scheme as well.
2.2 Learned Counsel further argued that the issue on hand is squarely covered in favour of the Appellant vide the decision in the case of Ms. Ceran Interior Limited 2019 (11) TMI 124-CESTAT Chennai as upheld by Hon’ble Apex Court as reported at 2023(9) TMI 818-SC, wherein under absolutely identical circumstances, benefit of Notification No. 12/2003-ST stood extended and demand dropped against the assessee. It was observed that the bonafide belief entertained by the Appellant all along cannot be ruled out and the demand is patently time-barred. The penalty was also set aside. The learned Counsel prayed that the appeal may be allowed.
3. The learned AR Shri Rajesh Nathan appeared and argued for the department. It is submitted that the appellant has paid service tax under CICS and only at the time of adjudication they sought classification under Works Contract service. The activity of the appellant falls under Finishing and Completion services only. Therefore appellant is not eligible for the abatement of notification 1/2006 or 12/2003. Further they have not produced site wise/ bill wise documents for use of materials and goods for execution of work orders. The confirmation of demand by rejecting the claim of abatement is correct and may be upheld. The learned AR prayed that the appeal may be dismissed.
4. Heard both sides.
5. The issue to be decided is whether the appellant is eligible for abatement of 67% of gross value under the Notification No. 1/2006-ST. Admittedly the appellant was paying service tax under the category of Commercial and Industrial Construction Services after availing abatement 67% on the gross value. The department has confirmed the demand rejecting the claim of abatement on the ground that the works executed by the appellant are mostly in the nature of „completion and finishing service‟ and the abatement is not eligible as per the above notifications. It is also alleged that appellant has not produced sufficient evidence to establish that materials and goods were used in the execution of work orders. For better appreciation, the definition of Commercial and Industrial Construction Services under Section 65(25(b)) of the Finance Act, 1994 with effect from 16.06.2005 is reproduced below:-
(25b) “Commercial or Industrial Construction” means —
a. construction of a new building or a civil structure or a part thereof; or
b. construction of pipeline or conduit; or
c. completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or
d. repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit, which is —
i. used, or to be used, primarily for; or
ii. occupied, or to be occupied, primarily with; or
iii. engaged, or to be engaged, primarily in,
commerce or industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams;
From the above definition it can be seen that construction activity for the purpose of repair, alteration, renovation or restoration and such other services would be eligible for abatement as it falls under sub-clause (d) of the definition. So also construction of pipelines or conduit falls under sub-clause (b) of the definition.
5.1 Learned Counsel invited our attention to the sample work orders included in the appeal paper book. Work order dated 15.01.2009 is as under:-
5.2 From the above samples it is very much clear that the appellant has used goods and materials for execution of the work orders. So also it cannot be said that all these are entirely in the nature of „Completion or Finishing service‟. The department has alleged that the appellant has not furnished sufficient evidences to prove that goods and materials were used in the execution of Construction works. In the impugned order, the Adjudicating Authority has observed that the appellant has purchased a huge amount of raw materials however has not produced evidence to link the sale of materials to each client and therefore the abatement cannot be granted. Observation in the impugned order reads as under:-
“19. It is not denied that they have purchased huge amount of raw materials. However, in order to get the benefit of Notification No.12/2003-S.T., which must be strictly construed, value of only that material could be deducted from the gross value of service received, where there is a clear cut of sale to that customer to whom such services has been provided. Assessee has failed to link the sale of materials to each of such client and the gross value received from them. The notification does not provide benefit for gross deduction of all purchases and thereafter either used/sold/supplied in relation to all the services provided to service recipients.”
Further in Para 18, it is observed by the Adjudicating Authority that even “assuming that the some might be in the nature of ‘Works contract service’ they have failed to bifurcate and substantiate that portion of gross value for treating it on different footing. In Para 16, it is observed that „Just because they purchased cement and steel on behalf of their customers, it does not mean that their service is also getting covered under Section 65(25b)[b] and [d]’.
5.3 From the above observations in the impugned order, it is clear that there is ample evidence to show that the appellant has used goods and materials in construction service which are composite in nature. So also, from the different work orders we have no confusion to conclude that these are not completion and finishing service so as to get excluded from the ambit of Notification No. 1/2006-ST. It also requires to be mentioned that the Tribunal in its earlier Final Order dated 02.07.2014, had remanded the matter with specific direction to the Adjudicating Authority to verify and scrutinize documents furnished by the appellant with regard to their claim of abatement in spite of such directions, the Adjudicating Authority has denied the benefit of abatement with observing that appellant has not produced details of site-wise/ bill-wise for the purchase of materials. We find that this observation is highly erroneous and not acceptable.
5.4 The Tribunal while analyzing a similar situation in the case of Ocean Interior Limited – 2019 (11) TMI 124 CESTAT CHENNAI observed that when there is sufficient evidence to establish that the appellant has purchased materials for execution of work and also paid VAT on such goods, the department cannot deny abatement and demand service tax on entire gross amount received. In the present case also, the appellant has produced VAT returns to show that they have paid VAT on the materials used in the execution of work orders. The relevant paragraphs in the case reads as under:-
“1.2 During the course of audit, it was noticed that the appellants had not discharged Service Tax on the gross amount received for completion and finishing services provided to their clients. The Department was of the view that the appellants failed to include the value of materials consumed by them while providing the finishing services. Further, it was seen from the invoices raised by the assessee to their client that they were paying VAT on 79.85% of the value of invoices and Service Tax on 20.15% of the remaining value. The Department was of the view that the appellant has to pay Service Tax on the gross amount received for completion and finishing services.
1.3 Though the appellant claimed that the value for the purposes of levy of Service Tax under Works Contract Service has to include the value pertaining to transfer of property in goods involved in the execution of Works Contract leviable to VAT/ Sales Tax, the Department was of the view that since the works are in the nature of finishing services, it did not involve transfer of proper in goods and was merely consuming the materials for providing the services; that such consumption did not amount to sale and therefore, the appellant is not entitled to exclude the material value.
7.3 The appellant has arrived at the value of service portion of Works Contract Service as per Rule 2A (i) whereas the Department has proceeded to arrive at the value as per Rule 2A (ii) for the period after 01.07.2012 and under the Composition Scheme for the period prior to 01.07.2012. Rule 2A (ii) would apply only if the value is not determined under clause (i). The appellant in the present case has arrived at the value and also paid VAT as per the VAT Law. The value of transfer of property in goods has to be arrived at on the basis of purchase price of various goods, apportionment of overheads and profit margin. The appellant, being an assessee under the VAT Law, has to abide by the state law for payment of VAT. Thus, he can only arrive at the value of goods used in the Works Contract by applying the VAT Law after deducting the value arrived for payment of VAT; the remaining portion has been subjected to payment of Service Tax. When VAT has already been paid on the value of goods, the same cannot be subjected to levy of Service Tax again.
8.1 The Hon’ble Apex Court in the case of M/s. Safety Retreading Co. (P) Ltd. Vs. Commissioner of C.Ex., Salem reported in 2017 (48) S.T.R. 97 (S.C.) has held that the assessee is liable to pay Service Tax only on the service component, which under the State Act was quantified at 30%. It was held that the assessee is not liable to pay Service Tax on the total amount for retreading including the value of materials/goods that have been used and sold in execution of the contract.
8.2 The Tribunal in the case of M/s. Singh Sales and Services Vs. Commr. of Cus., C.Ex. & S.T., Allahabad reported in 2017 (52) S.T.R. 38 (Tri. – Allahabad) has held that value of goods/spare parts supplied and used for providing service are not includible in the taxable value.
8.3 In M/s. Sobha Developers Ltd. Vs. Commissioner of C.Ex. & S.Tax, Bangalore reported in 2010 (19) S.T.R. 75 (Tri. – Bang.) it was held that the material value sought to be included on the ground that goods are consumed in provision of service and not sold, cannot sustain.
9. After appreciating the facts and following the decisions cited above, we are of the considered opinion that the appellant has correctly discharged Service Tax on the service portion. The demands therefore cannot sustain.
10. The impugned order is set aside.”
The said decision of the Tribunal was confirmed by the Hon‟ble Supreme Court and the appeal filed by department was dismissed as reported in – 2023 (9) TMI 818(SC).
5.5 Similarly in the case of Raj Inter Décor Private Limited – 2023 (7) TMI 1180 CESTAT Chandigarh the Tribunal while considering the eligibility of abatement of 67%, as per Notification No. 01/2006-ST held that in case of construction services of composite nature, abatement has to be granted :-
“7. It can be seen from the above that the Tribunal has already held that the appellants are not required to pay service tax on the services rendered by them either before or after 01.06.2007. Though, this decision has been rendered in respect of another branch of the appellant, facts of the case being identical, the ratio of the same requires to be followed. In view of the above, we are of the considered opinion that the appellants have rendered service under a composite contract and as such are not liable to pay service tax for the period before 01.06.2007; the demand for the subsequent period i.e. after 01.06.2007 cannot also be sustained having been raised under a wrong Head. During the course of the arguments, learned Counsel for the appellants submits that whereas the value of the material involved is 80%, they have availed benefit of only 67% rebate and have paid duty on 33% whereas they could have paid duty on 20% of the contract value; learned Counsel fairly submits that they are not seeking refund of the excess tax they have paid. Under the circumstances, we find that there is no merit in the contention of the Department and the appellant’s contention has considerable force.
8. In the result, the appeal is allowed.”
The Tribunal in the case of Wipro GE Medical Systems P Limited – 2009 (14) STR 43 (Bang.) considered the issue and held that abatement is eligible on the cost of material used for Management, Maintenance or Repair Service provided by the assessee therein. The Tribunal held that appellant is eligible for abatement on the cost of materials. The relevant paragraphs reads as under:-
“7. The learned Departmental Representative stated that the contract is only for the annual maintenance and the consideration received is only for the maintenance and repair. The replacement of spare parts is only incidental and there is actually no sale of the goods involved. Therefore, she supported the order-in-original and stated that the Order of the Commissioner is in accordance with law and the appellants are liable to pay service tax on the gross receipts. She also invited our attention to the Commissioner’s order wherein he has relied on the Board’s Circular dated 3-3-2006 according to which the appellants could have availed of the abatement only after producing the documentary evidence. She stated that there is actually no documentary evidence for the abatement claimed. This 30% : 70% appears to be arbitrary. In this view of the above, she requested the Bench to uphold the order of the Commissioner of Service Tax.
On a very careful consideration of the fact, we find that there is no dispute with regard to the leviability of service tax on the maintenance and repair services. The main point of dispute is with regard to the valuation. However, Section 67 of the Finance Act clearly provides for the abatement of the value of the goods sold in the course of the carrying out of the service. The point is whether the goods are actually sold. According to the department, the contract is only for the maintenance and repair. Therefore, it cannot be said that the spare parts were sold. This view is not correct. The chartered accountant has actually given a certificate with regard to the consumption of materials. It is also not denied that in the course of the maintenance no material was used. In several decisions it has been held that service tax cannot be levied on that portion of the value on which sales tax has been charged. This position has been elaborately dealt with in the decision of the Shilpa Colour Lab case decided by this Bench and cited supra. This view has been affirmed in many decisions. Once, the sales tax has been paid on the materials, then on the same service tax also cannot be charged. In fact, the appellants had relied on the decision of the Hon’ble Karnataka High Court which has been upheld by the Hon’ble Supreme Court. In the Modi Xerox case it has been clearly held that in the Annual Maintenance Contract, the replacement of spares etc. would be considered as sale. Even in the present case, on 70% of the value sales tax has been paid and this has been accepted by the Government of Karnataka. This fact also cannot be ignored. Moreover, Notification No. 12/2003 dated 20-6-2003 clearly provides for exempting the value of the materials sold during the provision of the service. Whenever, any service is provided if in the course of the provision of the service certain materials are used they will definitely be considered as sale. This is clearly covered by the Constitutional Article 366 (29) (B) cited by the learned Advocate. We do not agree with the learned Commissioner that the said Constitutional provision has no application here. The Maintenance and Repair Contract entered by the appellant with their customers has been recognized as Works Contract by the Government of Karnataka and the registration has been obtained for payment of sales tax. When that is the case, it cannot be said that the spare parts received by the clients of the appellant have not been sold to them. We hold that in any Annual Maintenance Contract the spare parts etc. which have been used in the course of the maintenance service are definitely to be considered as sold and when sales tax has been paid on the value of such goods, simultaneously one cannot charge them to the service tax. In view of these clear legal provisions, there is absolutely no justification for levy of service tax beyond 30% of the value of the total contract. We would like to state that the data provided by the appellant shows that the adoption of 30% of the value of the contract towards value of services rendered appears to be reasonable in the light of the payment of sales tax on the 70% value which has also been accepted. Therefore, this valuation cannot be said to be arbitrary. In these circumstances, we do not find any merit in the impugned orders. Since, the demand of duty is not sustainable the demand of interest, penalty etc. also are not justified. Hence, we allow the appeals with consequential relief.”
The said decision was upheld by Hon‟ble Apex Court by dismissing the appeal filed by department as reported in Commissioner v. Wipro GE Medical Systems Pvt. Limited – 2012 (28) S.T.R. J44 (S.C.).
5.6 After appreciating the evidences placed on record, we are of the view that appellant has used goods and material for execution of construction work. The allegation of the department that the works are entirely „Completion and Finishing service‟ is factually and legally incorrect. We, therefore, hold that the appellant is eligible for abatement. Following the ratio of decisions cited above, we are of the opinion that the demand raised cannot sustain. Accordingly the impugned order is set-aside. The appeal is allowed with consequential relief, if any.
(Pronounced in the open court on 25.01.2024)
