Custom, Excise & Service Tax Tribunal
Creative Enginering Constructions vs Visakhapatnam - G S T on 11 December, 2024
(1)
ST/31144/2017,
ST/21876/2014 & ST/22073/2014
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH AT HYDERABAD
Division Bench - Court No. - I
Service Tax Appeal No. 31144 of 2017
(Arising out of OIO No. VSP-EXCUS-001-COM-04-17-18 dt.27.07.2017 passed by Principal
Commissioner of Central Tax, Visakhapatnam)
Creative Engineering Constructions
Flat No.201, Sarada Towers, Facor Layout, ......Appellant
Ramnagar, Visakhapatnam, AP - 530 002
VERSUS
Commissioner of Central Tax
Visakhapatnam - I
Port Area, Visakhapatnam,
......Respondent
Andhra Pradesh - 530 035 with Service Tax Appeal No. 21876 of 2014 (Arising out of OIO No. VIZ-STX-001-COM-11-14 dt.17.02.2014 passed by Commissioner of Central Excise, Customs & Service Tax, Visakhapatnam-I) Creative Engineering Constructions Flat No.201, Sarada Towers, Facor Layout, ......Appellant Ramnagar, Visakhapatnam, AP - 530 002 VERSUS Commissioner of Central Tax Visakhapatnam - I Port Area, Visakhapatnam, ......Respondent Andhra Pradesh - 530 035 and Service Tax Appeal No. 22073 of 2014 (Arising out of OIO No. VIZ-STX-001-COM-11-14 dt.17.02.2014 passed by Commissioner of Central Excise, Customs & Service Tax, Visakhapatnam-I) Commissioner of Central Tax Visakhapatnam - I ......Appellant Port Area, Visakhapatnam, Andhra Pradesh - 530 035 VERSUS Creative Engineering Constructions Flat No.201, Sarada Towers, Facor Layout, Ramnagar, Visakhapatnam, AP - 530 002 ......Respondent Appearance:-
Shri P. Venugopal & Shri Sai Makrandh, Advocates for the Appellant. Shri V.R. Pavan Kumar, AR for the Respondent.
Coram: HON'BLE MR. A.K. JYOTISHI, MEMBER (TECHNICAL) HON'BLE MR. ANGAD PRASAD, MEMBER (JUDICIAL) (2) ST/31144/2017, ST/21876/2014 & ST/22073/2014 FINAL ORDER No. A/30414-30416/2024 Date of Hearing: 29.10.2024 Date of Decision: 11.12.2024 [Order per: A.K. JYOTISHI] In Appeal No. ST/31144/2017:-
M/s Creative Engineering Constructions (hereinafter referred to as the Appellant) are in appeal against the Order of the Adjudicating Authority dt.27.07.2017, whereby, the Original Adjudicating Authority has held that the construction undertaken by the Assessee during the period from 01.10.2006 to 30.06.2012 is covered under the taxable category of 'Construction of Complex Service' as defined under Section 65(105)(zzzh) of the Finance Act, 1994 and after 01.07.2012, they are classifiable as declared service under Section 66E(b) of the Finance Act, 1994. The Adjudicating Authority had decided six SCNs covering the period from 01.10.2006 to 31.03.2015, totally amounting to Rs.3,32,29,926/-, wherein, the demands were raised for different periods under different category of service. The breakup of the SCNs, nature of services proposed and amount involved are indicated below:-
Demand Penal
ST
Sl raised under provisions Period covered
SCN No. & Date demanded
No. Taxable invoked: in the notice
(in Rs.)
Service Sections
Construction
of Complex 10,04,342
Service
V/15/73/2012- Works 76, 78, October 2006
1 Adj Contract 1,94,42,189 77(1), to September
dt.24.04.2012 Service 77(2) 2011
Transport of
Goods by 4,43,905
Road Service
V/15/223/2012- Works
Adj Contract 71,90,961 2011-12
dt.22.11.2012 Service 76, (Adjudicated
2 OIO passed no. 77(1)(a) vide OIO
VIZ-STX-001- Transport of & 77(2) No.11/2014
COM-11-14 Goods by 9,957 dt.17.02.2014)
dt.17.02.2014 Road Service
(3)
ST/31144/2017,
ST/21876/2014 & ST/22073/2014
V/15/14/2014- Works
76, 77(1), 01.04.12 to
3 Adj Contract 45,10,197
77(2) 30.06.12
dt.21.05.2014 Service
V/15/201/2014- Works
01.07.12 to
4 Adj Contract 32,84,991 76, 77
31.03.13
dt.01.10.2014 Service
V/15/31/2015- Works
01.04.13 to
5 Adj Contract 25,36,890 76, 77(2)
31.03.14
dt.01.04.2015 Service
V/15/16/2016- Works
01.04.14 to
6 Adj Contract 20,07,412 76, 77(2)
31.03.15
dt.16.03.2016 Service
Total 3,32,29,926
2. The issues proposed to be decided by the Adjudicating Authority are indicated at Para 46 of the OIO, which are as follows:-
a) Whether the services rendered by the appellant are classifiable under the taxable categories of 'Construction of Complex Service' for the period prior to 01.06.2007 and under 'Works Contract Service' for the period after 01.06.2007.
b) Whether the appellant are liable to pay Service Tax under the taxable category of 'Transportation of Goods by Road Service' during the period from 01.10.2006 to September, 2011.
c) Whether the appellant are liable to pay Service Tax of Rs.3,32,29,926/- on the services rendered during the period from October, 2006 to March, 2015 (excluding the period 2011-12, covered by the OIO No. 11/2014 dt.17.02.2014)
d) Whether the appellant are liable to pay interest under Section 75 of the Finance Act, 1994.
e) Whether the appellant are liable for penalty under Sections 76, 77(1), 77(2) and 78 of the Finance Act, 1994.
3. The Adjudicating Authority has, inter alia, examined the applicability of Board Circular No. 151/2/2012-ST dt.10.02.2012 as well as the benefit of abatement of 67% and after considering the factual matrix and certain case laws, he held that the said circular would not be applicable to the appellant. However, he allowed the benefit of 67% abatement and taken into consideration the Service Tax actually paid by the appellant from 01.07.2010, while computing total Service Tax liability of the appellant. On (4) ST/31144/2017, ST/21876/2014 & ST/22073/2014 the issue of leviability of Service Tax on individual bungalow under the definition of 'Residential Complex', after having considered the statutory provisions and case laws relied upon by the appellant, i.e., (a) A.S. Sikarwar Vs CCE, Indore [2012 (28) STR 479 (Tri-Del)] and (b) Macro Marvel Projects Ltd Vs CST, Chennai [2008 (12) STR 603 (Tri-Chennai)], he observed that though the appellant had claimed that the flats and houses were sold after obtaining Occupancy Certificate (OC), the appellant had not furnished any documentary evidence in support of their claim. At para 61.2 of OIO, he made an observation that the appellant's contention that the flats and houses were sold post receipt of OC could be accepted if no amount was collected from the prospective buyer before the grant of Completion Certificate, relying on the judgment of Hon'ble High Court of Karnataka in the case of Confederation of Real Estate Developers' Association of India Vs Union of India [2015 (37) STR 211 (Kar)].
4. On the issue of liability of Service Tax on 'Transportation of Goods by Road Service' during the period 01.10.2006 to September, 2011, he confirmed the demand of Rs.4,43,905/- under GTA Service. Therefore, in short, the Adjudicating Authority has confirmed the demand of Service Tax under the category of 'Construction of Complex Service' and 'GTA Service'. Overall, out of total demand of Rs.3,27,86,021/-, demand of Rs.1,20,74,757/- was confirmed and the remaining amount of Rs.2,07,11,264/- has been dropped. The Adjudicating Authority has also appropriated Service Tax amount of Rs.17,98,255/-.
5. The factual matrix of the case is that the appellant is engaged in construction of villas and residential flats. After taking registration under 'Construction of Complex Service' on 23.11.2006, no returns were filed till October, 2008 and thereafter, 'Nil' returns were filed from October, 2008 to June, 2010. However, during the period July, 2010 to September, 2010, the appellant paid Service Tax after availing the benefit of abatement of 75% under Notification 01/2006. The appellant had undertaken, during the period October, 2006 to September, 2011, two projects viz., Sivaji Gardens, where a developed layout was having 31 plots with common roads, street lighting, bulk water connection, intercom and other common outdoor and indoor facilities. As per the agreement, the plots in the said layout were required to be sold first and then the buyers were to execute a works contract with the (5) ST/31144/2017, ST/21876/2014 & ST/22073/2014 appellant for construction of residential houses. Similarly, in the case of second projects i.e., Fortune Heights, they had constructed 220 flats of two and three bed room on their own land. In some cases, single agreement for sale of apartment with undivided share of land, while in some cases, different agreement for semi-finished flat and construction of balance structure or for full construction and sale of undivided portion of land.
6. Learned Advocate for the appellant has contested the Order on various grounds. According to him, the Adjudicating Authority has confirmed the demand under the category of services other than what has been specified in the SCN and therefore, the Impugned Order dt.27.07.2017 has traversed beyond the scope of the SCN. This is summarized as under:-
Period Confirmed in the
SCN No. & Date Proposal in the SCN
covered impugned OIO
October Proposed to classify Construction of
2006 to services under 'Construction Complex Service -
May 2007 of Complex Service' 65(105)(zzzh)
C.No.
V/15/73/2012-Adj
June
dt.24.04.2012 Proposed to classify Construction of
2007 to
services under 'Works Complex Service -
March
Contract Service' 65(105)(zzzh)
2011
Proposed to classify
April services under 'Works
Construction of
V/15/14/2014-Adj 2012 to Contract Service' and levy
Complex Service -
dt.21.05.2014 June tax at 12.36% without
65(105)(zzzh)
2012 extending the Composition
Scheme
Proposed to classify
services under 'Works Construction of
July 2012
V/15/201/2014- Contract Service' and levy Complex Service as
to March
Adj dt.01.10.2014 tax on 40% of the total defined under
2013
consideration received as Section 66E(b)
'original works'
Proposed to classify
April services under 'Works Construction of
V/15/31/2015-Adj 2013 to Contract Service' and levy Complex Service as
dt.01.04.2015 March tax on 40% of the total defined under
2014 consideration received as Section 66E(b)
'original works'
Proposed to classify
April services under 'Works Construction of
V/15/16/2016-Adj 2014 to Contract Service' and levy Complex Service as
dt.16.03.2016 March tax on 40% of the total defined under
2015 consideration received as Section 66E(b)
'original works'
(6)
ST/31144/2017,
ST/21876/2014 & ST/22073/2014
7. Essentially, while the Adjudicating Authority had held that services would not fall under the category of 'Works Contract Service', and they would be taxable under the category of 'Construction of Complex Service', learned Advocate has relied on various case laws in support that demand cannot be confirmed under any other category other than what has been specified in the SCN, which are as follows:-
i) Raghava Estates & Properties Ltd Vs CCT, Guntur [2024 (8) TMI 1336
- CESTAT Hyderabad DB]
ii) PK Agarwalla Vs CCE & ST, Kolkata [2024 (8) TMI 716 - CESTAT Kolkata]
iii) KPR Fertilizers Ltd Vs CC, CE & ST, Visakhapatnam-II [2023 (3) CENTAX 110 (Tri-Hyd)]
iv) CCE & C, Belgaum Vs Mahakoshal Beverages Pvt Ltd [2014 (33) STR 616 (Kar-HC)]
v) Enpe Earthmovers Vs CC & CE, Goa [2012 (27) STR 48 (Tri-Mumbai)]
vi) CCE Vs Sun Pharmaceuticals Ltd [2015 (326) ELT 3 (SC)]
8. In so far as the demand of Service Tax prior to 01.07.2010 on 'Construction of Complex Service' is concerned, the appellant submits that the same is not sustainable in terms of CBEC Circular dt.10.02.2012. In support of the same, they have relied on the following case laws:-
a) Kolla Developers & Builders Vs CCCE & ST, Hyderabad-II [2018 (11) TMI 164 - CESTAT Hyderabad DB]
b) Grandeur Homes Pvt Ltd, Alpine Estates, Paramount Builders, Modi & Modi Constructions, Greenwood Estates, Sri Krishna Ventures Pvt Ltd and Krishna Developers Vs CST, Hyderabad-II [2019 (2) TMI 772 - CESTAT Hyderabad DB]
c) Asian Builders & Developers Vs CCT, Secunderabad [2023 (10) TMI 429 - CESTAT Hyderabad DB]
d) CC, CE & ST Vs Pragati Edifice Pvt Ltd [2019 (9) TMI 792 - CESTAT Hyderabad DB]
9. Further, in respect of construction of single residential villa for personal use for the period prior to 30.06.2012, he submits that construction of building intended for personal use of the owner is not (7) ST/31144/2017, ST/21876/2014 & ST/22073/2014 taxable. He further submits that it is not disputed that the developed plots were sold to different buyers under registered sale deed after payment of appropriate stamp duty to the Government by the appellant and thereafter, the appellant entered into individual agreement with buyer/ owner of plot to construct a single house/ villa. The house plan was also approved in the name of the buyer/ owner of plot. Building permissions and OCs were also issued by the Greater Visakhapatnam Municipal Corporation (GVMC) in the name of the buyer/ owner of the plots and each of these villas is an independent house in itself. Therefore, the activity is excluded or exempted, both before and after 01.07.2012, from Service Tax. He has categorically submitted that they have not constructed complex or building comprising of 12 or more dwelling units and reliance on definition of 'Residential Complex' in clause 2(zc) of Notification 25/2012-ST as - any complex comprising of a building/ buildings having more than one single residential unit. He has relied on the following case laws in support of his argument:-
a) M/s Macro Marvel Projects Ltd Vs CST, Chennai [2008 (12) STR 603 (Tri-Chennai)]
b) CCT, Hyderabad-GST Vs CSK Realtors Ltd [2024 (3) TMI 351 - CESTAT Hyderabad]
c) CCE & ST Vs Alliance Infrastructure Projects Pvt Ltd [2021 (11) TMI 282 (Kar-HC)]
d) Baba Construction Pvt Ltd Vs CCE & ST, Ghaziabad [2018 (15) GSTL 345 (Tri-Allahabad)]
10. In respect of liability of Service Tax on Fortune Heights Apartments, where they had constructed 220 flats, they have already submitted four OCs issued by M/s Ravi Kumar Enterprises, Consultant Civil Engineers, Approved Valuers & Licensed Engineers in GVMC & Visakhapatnam Urban Development Authority (VUDA) showing the details of the flats which were completed by 31.12.2010, 31.03.2011, 30.06.2011 & 15.02.2012 and the OC dt.03.03.2012 issued by the Commissioner of GVMC. The receipt of these four OCs has been admitted by the Adjudicating Authority at para 14 of the OIO dt.27.07.2017. Appellant has also furnished details of the 220 flats sold in the Fortune Heights Apartments in the following manner and the reasons why they are not leviable to the Service Tax:-
a) 32 flats were sold on or before 30.06.2010. No Service Tax is leviable on these flats as per CBEC Circular dt.10.02.2012.(8)
ST/31144/2017, ST/21876/2014 & ST/22073/2014
b) 150 flats were sold after receipt of OCs as duly certified by Chartered Accountant. No advance taken against these flats by appellant prior to receipt of OC. No Service Tax is leviable on these flats.
c) In respect of 31 flats, the appellant sold land portion along with semi- constructed flat (up to slab level) for consideration under a registered sale deed on payment of applicable stamp duty to Government and on the same day, the appellant also entered into individual construction agreement with each buyer of the semi-constructed flat for completion of the flat. The above transactions were duly certified by Chartered Accountant.
d) In respect of the remaining 7 flats, the appellant sold these seven flats at finished level along with the land portion after taking advance before the receipt of OCs. Hence Service Tax is payable on these flats after abatement of 75% involving tax liability of Rs.5,39,656/-, in terms of Notification 01/2006-ST as amended vide Notification 29/2010-ST as the present case involves providing material and construction services as well.
11. In support of their contention that Service Tax is not leviable, he relies on the decision of this Tribunal in the case of Greenwood Estates Vs CCT, Secunderabad-GST [2024 (3) TMI 563 - CESTAT Hyderabad], wherein, this Tribunal, by relying on the decision of Modi Ventures Vs CCT, Secunderabad where at para 12 it was held that no Service Tax is chargeable for the period prior to and also for the period after 01.07.2010, for service provided to the individual buyer of the flat for personal use and set aside the demand. However, they have considered that even if the Service Tax is leviable on the said 31 flats, then also, they will be liable to only Rs.24,02,211/-, after availing abatement of 75%.
12. Appellant has also clarified that since they had already paid Service Tax of Rs.17,98,255/-, which has been duly appropriated by the Adjudicating Authority and has also pre-deposited Rs.17,50,000/-, the total liability would be less than the total amount already deposited by them with Department. Further, by way of additional submissions, they have again reiterated that, as held by the Hon'ble Supreme Court in the case of Larsen & Toubro Ltd [2015 (39) STR 913 (SC)] and also in view of Section 65(105)(zzzza) of the Finance Act, 1994, wherein, under sub-clause (ii), it is (9) ST/31144/2017, ST/21876/2014 & ST/22073/2014 provided that 'Construction of Residential Complex' or a part thereof is taxable as 'Works Contract Service', Service Tax on villas and residential flats w.e.f. 01.07.2007 only in respect of composite contracts providing services including transfer of property in goods, cannot be demanded under the category of 'Construction of Residential Complex Service'. He has relied on the following case laws:-
a) URC Constructions Pvt Ltd Vs CCGST & CE, Salem [2024 (7) TMI 106
- CESTAT Chennai]
b) Raaga Mayuri Builders Pvt Ltd Vs CCT, Tirupathi [2023 (12) TMI 750 - CESTAT Hyderabad DB]
c) Sai Teja Constructions Vs CST, Hyderabad [2019 (7) TMI 575 -
CESTAT Hyderabad DB]
13. He has further clarified that the amendment brought in Section 65(105)(zzzh) would also not make them liable for the Service Tax as it covers only service simpliciter and not applicable to composite contracts. He has relied on the judgment of Raj Construction Company Vs CCGST & CE, Udaipur [2024 (11) TMI 11 - CESTAT New Delhi].
14. On the other hand, learned AR has contested these arguments mainly on the ground that they have not submitted ledger copies, etc., in order to cross check whether they have received any advance before the issuance of OCs and therefore, one cannot come to the conclusion in respect of villas and flats which are exclusively sold without receipt of any advance before the issuance of OC. Learned AR also points out that the OC issued by M/s Ravi Kumar Enterprises is not a valid OC as the same has to be issued by the local authority only. It is also submitted that appellant has received advance from the customer. He further submits that w.e.f. 01.07.2012, in terms of Section 66E(b), they are liable to pay Service Tax unless the flat or villa has been sold after the receipt of OC and that too without taking any advance from the customer.
In Appeal No. ST/21876/2014:-
15. The appellant filed this appeal against the Order of the Adjudicating Authority dt.17.02.2014, whereby, the demand for the period April 2011 to March 2012 under the category of 'Works Contract Service' has been (10) ST/31144/2017, ST/21876/2014 & ST/22073/2014 confirmed amounting to Rs.71,90,961/-, while the remaining amount of Rs.96,59,265/- has been dropped and an amount of Rs.11,27,178/- already paid under 'Construction of Residential Complex Service' for the period 2011-12 has been appropriated.
16. In this case, the proposal was to classify the taxable service under Section 65(105)(zzzza) for the period 2011-12 and the Adjudicating Authority has held that the services provided by the appellant were also in the nature of 'Works Contract Service'.
17. In this appeal also, the appellant has advanced similar arguments as made in Appeal ST/31144/2017.
In Appeal No. ST/22073/2014:-
18. This appeal has been filed by the Department against Order of the Adjudicating Authority dt.17.02.2014, whereby, the Adjudicating Authority had, for the period 2011-12, held the services rendered by the assessee as falling under 'Works Contract Service'. The department is in appeal for the limited issue that the Adjudicating Authority has wrongly extended the benefit of abatement under Rule 2A of Service Tax (Determination of Value) Rules, 2006. It is pointed out in the grounds of appeal that as per explanation (c) to clause (i) of Rule 2A the value adopted for the purpose of payment of VAT or Sales Tax shall be taken as value of property in goods involved, whereas, the Adjudicating Authority had observed that the assessee had not provided the proof of payment of VAT/ Sales Tax on material value shown by them. Further, the composition scheme is not applicable automatically but needs to be opted by the assessee subject to fulfillment of conditions laid therein.
19. Essentially, the Department is not opposing the classification of the services under 'Works Contract Service' and are only appealing the extension of abatement given to the assessee by the Adjudicating Authority on the ground that benefit of composition scheme cannot be extended suo moto.
20. Heard both the sides and perused the documents. Further, as all these appeals are having common issue, we intend to take up all these appeals together for the purpose of disposal.
(11)ST/31144/2017, ST/21876/2014 & ST/22073/2014
21. It is an admitted fact that the nature of service being provided by the assessee was more appropriately classifiable under 'Works Contract Service' for the period prior to 01.04.2012 as also during the subsequent period. This is also clear from the department's stand in Appeal No.ST/22073/2014 that appellants were having composite contract i.e., works contract. It is also now a settled law that no demand can be made under 'Works Contract Service' for the period prior to 01.07.2007 as there was no specified service for 'Works Contract' prior to 01.07.2007, as held by Hon'ble Supreme Court in the case of Larsen & Toubro (supra). Therefore, the demand prior to 01.07.2007 is not sustainable on this ground itself as the service provided was in the nature of composite contract and could not have been charged to Service Tax by classifying the same under 'Construction of Residential Complex Service'. This apart, it is also a settled position now, in view of various case laws cited by the assessee that for the period prior to 01.07.2010, construction of residential flats or villas, irrespective of whether it is classifiable under 'Construction of Residential Complex Service' or 'Works Contract Service', would not be leviable to Service Tax. It is also a settled legal position that any flat or building/ villa sold post receipt of OC cannot be subjected to Service Tax. However, in case, any advance has been taken before issuance of OC, then Service Tax liability is fastened on the service provider for the period post 01.07.2010.
22. Appellant has submitted detailed documents in support that the villas constructed by them are independent villas, where the designs and plans were approved by the buyers in their name only and they have only constructed as per the approved plan in terms of subsequent agreement on the plot sold by them. Even the OC has been issued in the name of the concerned villa owner. Similarly, in case of flats also, they have given details to prove that they have not taken any advance except in few cases and the flats have been sold by them as such, barring a few cases, post receipt of OC.
23. The department's dispute is not with regard to leviability of Service Tax for the period prior to 01.07.2010, rather it is more about non- production of documents in support that no advance has been received, as also the authority who has issued the OC. The assessees have themselves admitted the payment of certain Service Tax and are not contesting those (12) ST/31144/2017, ST/21876/2014 & ST/22073/2014 amounts as they have admittedly collected from their buyers. It is also obvious that as pointed out in para 6 above, the demands have been confirmed under the category which was not proposed in the SCN and therefore, on that count also, demand is not sustainable as held in various judicial pronouncements, cited supra. It is also observed that in the first round of appeal, the Tribunal had, while remanding the matter to the Original Adjudicating Authority, had invited his attention to Circular No. 151/2/2012-ST dt.10.02.2012, which clarified about non-leviability of Service Tax for the period prior to 01.07.2010 in respect of construction services provided by the builder/ developer in terms of Board Circular No.108/02/2009-ST dt.29.01.2009. Whereas, for the period after 01.07.2010, the construction services provided by the builder/ developer are taxable in case any part of the payment/ development rights of the plan was received by the developer before the issuance of completion certificate. Therefore, the principles are very clear that if any payment has been received from the customer or development right has been received from the land owner then when the construction service is provided to both the land owner and the buyer, Service Tax would be leviable in case advance development rights have been received.
24. Further, there are certain submissions by the department concerning calculation of Service Tax on account of non-furnishing of relevant documents evidencing non-receipt of advance, as also the authority for issuance of OC in the respective area of construction and therefore, the matter may be considered for remanding back to the Original Adjudicating Authority. We find much merit in the submissions of Department and therefore, remand these orders covered in these appeals to Original Authority. The Adjudicating Authority shall go through all the documents to come to the conclusion whether any advance has been taken from any customer of flats before issuance of OC and thereafter, recalculate the total amount of Service Tax liability. Similarly, in the case of authority issuing OC also, he may find out the practice and the authority, who was competent to issue OC during the material time and in that area where projects were situated after ascertaining necessary evidence from the concerned Municipal Authorities. Similarly, in respect of Appeal No. ST/22073/2014 filed by the Department, the facts as regards non-payment of applicable VAT to the State Authority by the assessee on the services of works contract also needs (13) ST/31144/2017, ST/21876/2014 & ST/22073/2014 to be ascertained by the Adjudicating Authority and if they have paid VAT on works contracts and they have also paid VAT/ Sales Tax on their raw material, in the said circumstances, the abatement allowed by the Commissioner is to be given. This may also require recalculation and therefore, this issue also needs to be remanded back to the Original Adjudicating Authority.
25. Therefore, in the facts of the case, discussions and settled legal position, there is no Service Tax liability for the period before 01.07.2010 and for the period after 01.07.2010, as also w.e.f. 01.04.2012, as regards the leviability of Service Tax, the matter is remanded to the Original Adjudicating Authority to recalculate, after going through the documents submitted by the assessee and keeping in view the observations made in the foregoing paras. He shall also adjust all the payments already made towards Service Tax liability and work out the net remaining liability, which will be required to be paid by the assessee.
26. All the three appeals are disposed of by way of remand to the Original Adjudicating Authority.
(Pronounced in the Open Court on 11.12.2024) (A.K. JYOTISHI) MEMBER (TECHNICAL) (ANGAD PRASAD) MEMBER (JUDICIAL) Veda