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TMI Blog2012 (10) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... n this proceeding. All of them are from the same appellant and regarding the same service but for different periods as detailed under: S. No. Appeal No. Period Tax involved 1. C-87/2011 2004-05 237973 2. C-219/2011 2005-06 135821 3. C-216/2011 2006-07 412309 4. C-217/2011 2007-08 671788` 5. C-218/2011 2008-09 362735 3. The Appellants were registered during the above period for providing service under the head for "Business Auxiliary Service". During the audit of their books, it was seen that the appellants were providing services described by them to be 'industrial site preparation' and receiving payments for such services but were not paying service tax on such activities. From i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) electrical and electronic devices, including wirings or fittings therefor; or (b) plumbing, drain laying or other installations for transport of fluids; or (c) heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work; or (d) thermal insulation, sound insulation, fire proofing or water proofing; or (e) lift and escalator, fire escape staircases or travelators; or (f) such other similar services' 7. The appellants submit that the adjudication order is issued considering that the same definition was prevailing through 2004-05 to 2008-09 and does not take note of the changes made on 16- 06-05. Only on this date the activity of installation of electrical and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriately made and the penalties also are properly imposed. Further he argues that a part of any service like construction activity may be outsourced and for that reason the liability to pay tax does not go away. It cannot be that in a construction service provided by an agency like National Building Construction Corporation can be considered as service provided by only the persons who soils their hand like a mason. If the appellants have received the service of any sub-contract as input service they can take Cenvat Credit for service tax if any paid by them. But the service tax liability for a work planned, monitored, supervised and billed by the appellant cannot be put on the sub-contractors. 10. We have considered arguments on both side ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be noted that the customer is making payment to the appellants and not to the persons who carried out the physical labour for such work. Accepting the arguments of the appellants will result in a situation where service tax on construction activity will have to be collected from the masons and carpenters and not from the building contractors. The laws do not warrant such an interpretation. The correct position is that the workmen or sub-contractors were providing service to the appellants and appellants in turn were providing service to the persons who gave them the contract. Of course if the individuals doing the work were paying service tax the appellants would have been eligible for credit of tax paid on such input service. Therefore w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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