Page 88 - GSTL_30th April 2020_Vol 35_Part 5

574 GST LAW TIMES [ Vol. 35
mark-up or margin being given to it, over and above the actual cost. In the
absence of such a mark-up/margin, the payments received against debit
notes by one employer-company upon the other employer-companies, will
not partake the character of consideration for any service, but will merely
represent reimbursement of shared costs.”
24. In view of the above, the deputation of the employee to the JV com-
pany cannot be held to be service. Thus no service tax is to be charged.
25. We also find that the entire activity of acquiring of the land by the
appellant, on behalf of the JV company, was known to the Department before
issue of the show cause notice. We also find that the entire issue of non-transfer
of land by the appellant to the JV company, was taken by the Government of
India and by the State of Rajasthan, subsequent to the acquisition of land, can be
considered only as a change of opinion in the subsequent periods. Therefore,
there is no case of suppression of facts, so as to invoke larger period of limitation,
for raising the demand, is not available to the Department and thus the demand
is not sustainable. We also find that there is no intent to evade payment of duty,
which is sine qua non for invoking proviso under Section 73A of the Act, not ap-
parent from record. In such circumstances, we also hold that the demand is time-
barred.
26. Accordingly, we set aside the impugned order and allow the appeal
with consequential relief, in accordance with law.
(Order pronounced on 21-8-2019)

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2020 (35) G.S.T.L. 574 (Tri. - Chennai)
IN THE CESTAT, SOUTH ZONAL BENCH, CHENNAI
Ms. Sulekha Beevi, C.S., Member (J) and Shri Madhu Mohan Damodhar,
Member (T)
VOORA SHREERAM CONSTRUCTION PVT. LTD.
Versus
COMMR. OF C. EX.
COMMR. OF C. EX. & ST, CHENNAI
Final Order No. 40174/2019, dated 24-1-2019 in Appeal No. ST/40070/2013
Works contract service - Composite contracts, involving provision of
service as well as transfer of property in goods are covered under works con-
tract service prior or after 1-6-2007 and not under Commercial or Industrial
Construction Service (CICS) in view of the decisions given in Larsen & Toubro
Ltd. [2015 (39) S.T.R. 913 (S.C.)] and in Real Value Promoters Pvt. Ltd. - Section
65(105)(zzzza) of Finance Act, 1994. [paras 2, 4, 5]
Appeal allowed
CASES CITED
Commissioner v. Larsen & Toubro Ltd. — 2015 (39) S.T.R. 913 (S.C.) — Relied on ............... [Paras 2, 4, 5]
Real Value Promoters Pvt. Ltd. v. Commissioner
— 2018-TIOL-2867-CESTAT-MAD — Relied on .................................................................... [Paras 2, 5]
GST LAW TIMES  30th April 2020  88