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TMI Blog2014 (7) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... come non-excisable goods and hence the activity of the respondent would be Business Auxiliary Service. The ground of appeal does not mention as to which clause of the definition of Business Auxiliary Service, as given in Section 65 (19) of the Finance Act, 1994, covers this activity. Probably the department wants to cover this activity under ‘Production or processing of goods for or on behalf of a client, which does not amount to manufacture’. But fabrication of steel storage tanks and steel structures would amount to manufacture and their erection and installation would certainly not be covered by Business Auxiliary Service. As regards the repair and maintenance service - during the period of dispute, this service was taxable when provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h September 2008 confirmed the service tax demand of the above-mentioned amount against the respondent alongwith interest and imposed penalty of ₹ 1,000/- on them under Section 77 of the Finance Act, 1994 and penalty of ₹ 1,00,111/- under Section 78 ibid. On appeal being filed to Commissioner (Appeals) against this order of the Assistant Commissioner, the Commissioner (Appeals) vide order-in-appeal dated 14/11/08 set aside the Assistant Commissioner s order and allowed the appeal. The demand in respect of repair and maintenance service was set aside on the ground that during the period of dispute, only the repair and maintenance activity under some contract or agreement was taxable, while in this case the Department has not prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri A.P. Mathur, Advocate, the learned Counsel for the respondent, defended the impugned order by reiterating the findings of the Commissioner (Appeals). 5. We have considered the submissions from both the sides and perused the records. 6. As regards the service tax demand based on the allegation that the respondent have provided Business Auxiliary Service, we find that the activity which has been treated as Business Auxiliary Service, as described in the grounds of appeal, is fabrication of steel storage tanks, dozers, settlers, steel structures, platforms, railing, foundation frames etc. and their erection and installation in the factory. The Department s plea is that these steel items after being erected and installed become embedde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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