National Building Construction Corporation Ltd. Vs CST (CESTAT Delhi)
Services of construction of women hostel for and on behalf of Ministry of Women and Child Development (WCD), Government of India and construction of Civil Services Offices Institute are not commercial in nature. In furtherance of the decision of Hon’ble Supreme Court in the case of Commissioner, Kerala vs. L & T Ltd. – 2015 (39) STR 913 (SC), wherein it was held:-
“that a works contract is a separate species of contract distinct from contracts for services simpliciter recognized by the world of commerce and law as such, and has to be taxed separately as such.” And further observed in para “31. In the aforesaid judgment, it was held that the levy of service tax in Section 65(105)(g), (zzd), (zzh), (zzq) and (zzzh) is good enough to tax indivisible composite works contracts.”, and in para held that “24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines “taxable service” as “any service provided”. Therefore, now it is settled that section 65 (105)(zzq) read with section 65(25b) of the Finance Act do not cover composite contract, it only covers contracts for services simpliciter, whereas, in the present case, it is undisputed facts that all contracts are composite contracts”
Since the demand under commercial or industrial construction for a period upto 30th June, 2012 has been dropped and the period for both the appeals is prior the said date and that the Department has not filed an appeal challenging those findings by virtue whereof the demand in appeal No.52331 had already been dropped. The benefit thereof is extended in favour of the appellant qua appeal No. 53500/2014 as well. The order under challenge confirming the levy qua this service is therefore set aside.
FULL TEXT OF THE CESTAT JUDGMENT
The present order disposes of above two appeals, issue involved in both the appeals being same and findings there upon being concurrent. These appeals are however, against the Order- in- Original No.59/ST/SRB/14 dated 26th March, 2014 and Order-in-Original No. 541-546 dated 25th April, 2016 respectively.
2. The facts relevant for the purpose of both the appeals are:
The appellants are registered with Service Tax Commissionerate, New Delhi for providing Maintenance or Repair Services. After an audit conducted by the Offices of the said Commissioenrate for the period 2006-07 to 2009-10 in Appeal No.53500/2014 and for the period 2006-07 to 2010-11 in Appeal No.52331 / 2016, it was observed that the appellants are rendering taxable services without discharging their liability qua the same. The adjudication in both the cases got initiated based on multiple show cause notices in each of the appeal as detailed below.:-
