M. Veeraiyan, Technical Member - The application seeks waiver of pre-deposit of service tax amounting to Rs. 2,36,80,916/- relating to the period 16th June, 2005 to 31st March, 2010 along with interest and penalties imposed under various sections.

2.1 Learned advocate for the appellant submits that they were undertaking execution of "interior designs", as designed by different architects. They were executing the work after using bought-out items like wood laminates, pipes, electrical items, plumbing items and glass etc. They were paying service tax under the category of "Commercial and Industrial Construction" services with effect from 16-6-2005 up to 30-6-2007 and thereafter started paying under the category of works contract. A show-cause notice dated 7-9-2010 was issued proposing demand of service tax amounting to Rs. 2,36,80,916/- alleging that the appellants were not eligible for the benefit of Notification No. 12/2003-S.T., dated 20-6-2003 and that they were also not eligible for paying service tax under the category of works contract. Commissioner confirmed the demand along with interest and imposed penalties as mentioned above.

2.2 Learned advocate challenges the order of the Commissioner on the following grounds :

(a) During the relevant period, they have executed the orders worth about Rs. 20.29 crore. A part of these amounts was mentioned as due from sundry debtors but has not actually been received.

(b) They have utilized/supplied goods valued about Rs. 13.11 crore while rendering the services and they have paid VAT under different schemes as applicable in respect of such goods.

(c) The taxable value excluding the value of goods which was subject to VAT was only Rs. 2,95,64,113/- and the duty payable comes to Rs. 18,42,876/-, which they have paid.

(d) The denial of the benefit of exemption under Notification No. 12/2003 on the ground that no documents have been produced was not justified as the invoices raised on the service recipients clearly indicated the rate analysis of various items which were supplied/utilized while rendering the services and on that basis on the supply/sale of such items, VAT was paid.

(e) Denial of benefit under the works contract was not justified. The Commissioner has held that no option was exercised for paying service tax under the head Works Contract. The option under Works Contract would arise only when service tax was sought to be paid under the composite scheme and not for regular assessees.

(f) Referring to Board's Circular No. B-1/16/2007-TRU, dated 22-5-2007, he submits that any contracts which are treated as works contracts for purposes of levy of VAT/sales tax shall also be treated as works contract for purposes of levy of service tax.

3. Learned Commissioner (A.R.) reiterated the findings and reasoning of the Commissioner. He relied on the decision of the Larger Bench of the Tribunal in the case of Aggarwal Colour Advance Photo System v. CCE [2011] 33 STT 33 and submitted that for the purpose of Notification No. 12/2003, only actual sales could be considered and not the deemed sales. He further submitted that Commissioner has denied the benefit as the appellants have failed to produce necessary documents indicating sale of the goods. For the purpose of paying service tax under works contract, the contract should involve supply of goods and rendering of services in a composite manner. Once the appellants exclude the value of the goods, they cannot seek assessment under works contract.

4.1 We have carefully considered the submissions from both sides and perused the records.

4.2 The Commissioner has confirmed the demand treating the amounts mentioned as "receivables" as service charges received by the appellant. This is erroneous as the service tax is liable to be paid on actual amounts received and not on amounts which may be receivable and not yet received.

4.3 Further, we find that the appellants have executed orders worth about Rs. 20 crore and they claim that value of goods involve