2012 (8) TMI 468 - AT - Service Tax

Manufacturing of Ready Mix Concrete - revenue contended the same to be Commercial & Industrial Construction Services - assessee contended that this activity is part of the sale transaction and it is not part of any construction services - Held that - Tribunal in case of GMK Concrete Mixing (P.) Ltd. v. CST (2011 (11) TMI 425 - CESTAT, NEW DELHI) held that contract between the parties was to supply ready mix concrete (RMC) but not to provide any taxable service. Finance Act, 1994 not being a law relating to commodity taxation but services are declared to be taxable under this law, the adjudication made under mistake of fact and law fails. In view of aforesaid we allow the appeal by setting aside the impugned order.

Summary

Issues:
1. Whether the activity of delivering Ready Mix Concrete (RMC) at a desired location by pumping it is covered under 'Commercial & Industrial Construction Services' for the purpose of imposing service tax.

Analysis:
1. The appellants are engaged in the business of manufacturing RMC and delivering it at the desired location on-site by pumping. The Revenue imposed service tax on the entire consideration received for RMC, claiming it falls under 'Commercial & Industrial Construction Services'. The appellant contended that this activity is part of the sale transaction and not a construction service. Reference was made to a Tribunal case and a High Court decision supporting this position.

2. The appellant argued that since the issue has been previously decided by the Tribunal and a High Court, there should be no pre-deposit required, and the appeal should be decided based on those decisions. The Revenue, while acknowledging the similarity with the previous cases, requested time to verify any differences. After considering the arguments and reviewing the previous decisions, the Tribunal found the facts to be identical and nothing further to be decided in the appeal.

3. Consequently, the Tribunal dispensed with the requirement of pre-deposit, took up the appeal, and allowed it by setting aside the impugned order. This decision was based on the understanding that the activity of delivering RMC at a specific location by pumping did not fall under 'Commercial & Industrial Construction Services' for the purpose of service tax, aligning with the arguments presented by the appellant and the precedents cited.