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TMI Blog2012 (7) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of lighting, false ceiling, painting etc. The point of dispute is as to whether their activity was 'Commercial or Industrial construction service' taxable under Section 65 (105) (zzq) readwith Section 65 (25) of Finance Act, 1994 w.e.f. 10/9/04 or the same was "erection, installation and commissioning" service (erection of structures) which became taxable only from May 2006. The department was of the view that the Appellant's service is commercial or industrial construction service taxable since 10/9/04 and on this basis, the Commissioner vide order-in-original No. 1/COMMR/ST/ADJ/BPL-I/2011 dated 13/01/11 confirmed the service tax demand of Rs.1,48,96,727/- alongwith interest and imposed penalty of equal amount on them under Section 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Central Excise Superintendent for commercial or industrial construction service, that, thereafter, vide their letter dated 24/3/05 addressed to the Jurisdictional Assistant Commissioner under copy to the Superintendent, the appellant requested for endorsement in their registration certificate the "erection, installation or commissioning" service and the needful was done by the Superintendent, that the appellant w.e.f. 1/5/06 started paying service tax under erection, installation, commissioning service, as according to them prior to 1/5/06 their activity was not taxable either as commercial or industrial construction service or as erection, installation, commissioning service, that w.e.f. 1/6/07 their activity became taxable under wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioning service" under Section 65 (105) (39a) of the Finance Act, 1994 w.e.f. 1/5/06, while according to Department, this activity is "commercial or industrial construction service" which was taxable under Section 65 (105) (zzq) readwith Section 65 (25b) w.e.f. 10/9/04. 8. During period w.e.f. 1/5/06, Section 65 (39a) defined "erection, commissioning or installation" as any service provided by a commissioning and installation agency in relation to - (i) erection, commissioning or installation of plant, machinery, equipment or structures, whether prefabricated or otherwise ; or (ii) installation of - (a) electrical and electronic devices, including wiring or fittings thereafter; or (b) plumbing, drain laying or other installation for tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustrial construction service" which became taxable w.e.f. 10/9/04. 11. However, w.e.f. 1/6/07, when the work contract service was introduced, if the appellant's contracts are covered by the definition of "work contract", as given in Explanation to Section 65 (105) (zzzza) i.e. if the contracts involve transfer of property in goods on which VAT/Sales Tax is leviable, the service tax would be chargeable as work contract service. 12. On the question of limitation, we find that - (a) the appellant had applied for service tax registration on 3/12/04 and for "construction service" and had been issued registration certificate on the same day by the Jurisdictional Superintendent, Central Excise ; (b) On 3/3/05 and 14/3/05 the appellant had wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of proviso to Section 73 (1) of Finance Act, 1994 are in parimateria with the proviso to Section 11A (1) of the Central Excise Act, 1944 and in respect of proviso to Section 11A (1) of Central Excise Act, the Apex Court in a series of judgments in cases of Pushpam Pharmaceuticals Company vs. CCE, Bombay reported in 1995 (78) E.L.T. 401 (S.C.), CCE vs. Chemphar Drugs & Liniments reported in 1989 (40) E.L.T. 276 (S.C.), Nestle India Ltd. vs. CCE, Chandigarh reported in 2009 (235) E.L.T. 577 (S.C.) has held that something positive, other than mere inaction or failure on the part of the manufacturer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required for invoking the extended peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount received minus 67% abatement under Notification 15/04-ST/ or 1/06-ST if the conditions of these notifications are satisfied. During period w.e.f. 1/6/07, if the appellant's activity is covered by "work contract" as defined under Explanation to Section 65 (105) (zzzza) the service tax would be chargeable on the taxable value determined under Rule 2A of the Service Tax (Determination of Value) Rules, 2006 or at the option of the appellant, at the compounded rate under Works Contract (Composition Scheme for payment of service tax) Rules, 2007 on the gross amount, as determined under Rule 3 (1) of these rules and subject to the conditions prescribed in sub-Rule (2) (2A), (3) and (4) of Rule 3 of these Rules. 14. In view of the above discu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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