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TMI Blog2010 (8) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal is on the classification of the activity whether shall be commercial industrial construction as defined by Section 65(25b) of the Finance Act, 1994 (hereinafter referred to as the Act ) as claimed by Revenue or shall fall under the category of the activity called works contract as defined by Section 65(105)(zzzza) of the Finance Act, 1994 as claimed by the appellant in respect of the activity of construction of petrol pumps most particularly civil works done as averred by leaned Authorized Representative (AR). The Adjudication gave rise to service tax demand of Rs 17,45,337/- with consequential penalty of equal amount under Section 78 of the Act and penalties under other sections, followed by interest. 2. Revenue was of the view that the activity carried out by the appellant for the Petroleum companies namely IOCL, HPCL, BPCL, MRPL, was commercial and industrial construction service for use by petroleum industry being specifically designed work for such industries. Such a conclusion of the revenue is controverted by the appellant in this appeal. The appellant submitted that the activity carried out was a works contract within the definition of Section 65(105)(zzzza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th effect from 1-6-2007 but not prior to that. 5. On the other hand, learned DR appearing on behalf of Revenue supports the order of the authorities below bringing out that the new entry relating to works contract u/s 65(105)(zzzza) of the Act shall be read for its own purposes in respect of the scope dealt by that entry with effect from 1-6-2007, without construing that earlier entries are made redundant following the decision of the Mumbai Bench of the Tribunal in the case Sunil Hi-Tech Engineers Ltd., v. CCE, Nagpur [2009-TIOL-1867-CESTAT-Mum = 2010 (17) S.T.R. 121 (Tri. - Mumbai)] and the previous entry has operated on its own field. 6. Heard both sides and perused the records. 7. We have heard this matter yesterday. But the appeal folder did not contain adjudication order. Therefore this was adjourned, to be heard today calling that order to form part of the record. We have the advantage of reading the adjudication order today. In the adjudication order, learned ajdudicaitng authority examined the scope of work that was carried out by the appellant. We do not appreciate that the new entry under Section 65(105)(zzzza) of the Act has brought any confusion for which the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Reading of Section 65(25b) clearly throws light that the activity carried out by the appellant was to serve the purpose of the Petroleum Industry. Therefore, legislative intend to classify the activities of the nature carried out by the appellant serves purpose of Section 65(25b) of the Finance Act, 1994. This section throws light to bring the appellant for appropriate classification under this entry in terms of guiding principles of Section 65A of the Finance Act, 1994 which reads as under : SECTION 65A. Classification of taxable services. (1) For the purposes of this Chapter, classification of taxable services shall be determined according to the terms of the sub-clauses of clause (105) of section 65; (2) When for any reason, a taxable service is, prima facie, classifiable under two or more sub-clauses of clause (105) of section 65, classification shall be effected as follows :- (a) the sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description; (b) composite services consisting of a combination of differnt services which cannot be classified in the manner specified in clause (a), shall be classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, renovation or restoration of, or similar services, in relation to (b) and (c); or (e) turnkey projects including engineering, procurement and construction or commissioning (EPC) projects; 11. Activities which were not probably appearing in any of the previous entries or to become more specific in terms of Section 65A are embodied under the new entry. This does not any way hamper or distort incidence of levy by previous entry like 65(25b). Reading of Section 65(105)(zzzza) throws light that the term works contract is such an activity relating to sale of goods followed by services to achieve the purpose enumerated by sub-clause (i) of Section 65 (105)(zzzza) of the Act. Those are brought by this specific entry under the caption of works contract service without making other entries otiose or redundant. The new entry does not repeal the previous entry appearing under Section 65(25b) nor also the new entry tries to encroach over the previous entry, so also the new entry does not make the previous entry redundant. Once such view is prima facie possible, revenue s interest cannot be prejudiced in view of the judgement of the Tribunal in the case of Sunil Hi-Tech Engineers Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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