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TMI Blog2014 (7) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... e do not find any infirmity in the finding of the Commissioner (Appeals) that the respondents activity did not attract any service tax As regards, the allegation that the respondent have provided the Business Auxiliary Service, - the activity which has been treated by the Department as Business Auxiliary Service, as described in the grounds of appeal, is fabrication of steel storage tanks, dozers and settlers, steel structures, steel platforms, railing, foundation frames etc. and their erection and installation in the factory. While fabrication of tanks and steel structures being manufactured is not production or processing not amounts to manufacture, the erection and installation of tanks, dozers, settlers, and steel structures is cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Department is Business Auxiliary Service in respect of which no service tax was paid. On this basis, the Jurisdictional Assistant Commissioner vide order-in-original dated 19/09/08 confirmed service tax demand of ₹ 1,80,824/- against the respondent alongwith interest thereon and beside this while imposed penalty of equal amount on them under Section 78 of the Finance Act, 1994, another penalty of ₹ 1,000/- on them was imposed under Section 77 ibid. On appeal being filed to Commissioner (Appeals), against this order of the Assistant Commissioner, the Commissioner (Appeals) vide order-in-appeal dated 17/11/08 set aside the Assistant Commissioner s order and allowed the appeal. The Commissioner (Appeals) set aside the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Business Auxiliary Service alleged to have been provided by the respondent, she pleaded that the respondent during the period of dispute had fabricated steel storage tanks, dozers and settlers, steel structures, steel platforms, railing, foundation frames etc. and had erected and installed the same in the factory and after erection and installation, the same having become embedded to earth become non-excisable goods and hence the entire activity of the respondent would have to be treated as Business Auxiliary Service. She, therefore, pleaded that the impugned order is not correct. 4. Shri A.P. Mathur, Advocate, the learned Counsel for the respondent, defended the impugned order by reiterating the findings of the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have gone through the definition of Business Auxiliary Service as given in Section 65 (19) of the Finance Act, 1994 and we have not been able to find any clause of Section 65 (19) which covers this activity. While fabrication of tanks and steel structures being manufactured is not production or processing not amounts to manufacture, the erection and installation of tanks, dozers, settlers, and steel structures is certainly not covered by any clause of Section 65 (19). Therefore, we agree with the findings of the Commissioner (Appeals) that this activity of the respondent is not covered by the definition of Business Auxiliary Service and hence the same is not taxable. 8. In view of the above discussion, we do not find infirmity in the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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