V. Padmanabhan ORDER
V. Padmanabhan, Member (T)
1. The present appeal along with COD application has been filed against the Order-in-Original No. CAL-EXCUS-000-COM-076-15-16 dated 15/03/2016.
2. The appeal has been filed with the delay of 266 days. It is submitted on behalf of the appellant that the order dt. 15/03/2016 was received by them on 22/03/2016. However the appeal could not be filed within time since the partner, Shri C. Raghavan. was suffering from serious heart ailment and was under treatment during the period May 2016 till January 2017. The learned counsel also prayed that there was a change of counsel because of which also appeal could not be filed in time. For the reasons mentioned in the COD application, we are of the view that this is a case where delay can be condoned and appeal can be taken up on merit.
3. After condoning the delay, with the consent of both the parties, we take up the appeal itself on merit.
4. The appellant is engaged in the activity of construction of residential and commercial complexes. They filed declaration under the Service Tax Voluntary Compliance Encouragement Scheme (VCES) and declared service tax liability for the period April 2011 to December 2012 to be Rs. 8,14,025/- and paid the service tax accordingly. Subsequently during scrutiny of records, the Revenue noticed that the appellant has failed to declare his service tax liability property and by alleging substantial misdeclaration of service tax dues in the VCES declaration, a show-cause notice was issued. The impugned order came to be passed after conclusion of adjudication proceedings in which an additional service tax of Rs. 4,88,415/- was demanded from the appellant along with interest as well as penalties under various sections of the Finance Act, 1994, Aggrieved by the impugned order, the present appeal has been filed.
5. With the above background, we heard Shri Sherry Oommen. Advocate for the appellant and Shri Madhupsharan, Asst. Commissioner (AR) for the respondent.
6. Learned counsel for the appellant submitted that after declaring the total value of taxable services in the VCES declaration, they had claimed abatement to the extent of 75% as per the Notification No. 26/2012-ST and paid the balance dues of Rs. 8,14,025/-. The abatement as above was available to them towards the cost of land under the category of construction of complex services. The Revenue procured copies of the returns filed by the appellant to the VAT Department wherein the services rendered by the appellant have been declared as works contract services. Accordingly the allegation of substantial misdeclaration has been made against the appellant and the benefit of abatement denied to them resulting in the present demand for differential service tax. The learned counsel further submitted that the definition of works contract service under the Finance Act 1994 as well as the respective State Government Act are different and the services rendered by them would be rightly classifiable under the construction of complex services under Finance Act. 1994 since the consideration received by the appellant also includes the cost of the undivided share of the land transferred after construction of the apartments Accordingly he submits that the demand is without justification.
7. Learned AR justified the impugned order he also relied upon the decision of the Hon'ble Supreme Court in the case of Larsen & Toubro Ltd. [MANU/SC/0985/2013 : 2014 (303) ELT 3 (SC)], wherein it is held that w.e.f. 01/06/2007 any service in which the value of goods is also transferred along with rendering of services will be classifiable only under works contract service Accordingly he justified the impugned order.
8. After hearing both sides and perusal of records, we note that the appel........