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TMI Blog2017 (9) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... respective of environment outside the greenhouse. This results in better and higher production. Green house have design feature like ventilation. The said ventilation can be used to control temperature within the greenhouse by allowing the hot air to escape or by restricting the flow of the same. 2.1 Ld. Consultant argued that the activity of erection, commission and installation of structure was included in the definition of erection, commission or installation service on 1-5-2006 and since that date they are paying service tax. There is no dispute for the period after 1-5-2006 except for certain quantification issues. Ld. Consultant argued that prior to 1-5-2006 the said service did not cover erection and commission of structure like greenhouse as it covered only erection commission and installation of plant, machinery or equipment. He argued that greenhouse is neither plant nor machinery or equipment, therefore there cannot be levy for period prior to 1-5-2006. He further argued that some of the contract of construction of greenhouse inclusive of material and are in nature of works contract. He argued that in view of the decision of Hon'ble Apex court in case of CCE Vs. Larsen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33% of the gross amount charged for commissioning or installation and supply of plant, machinery or equipment. It is optional for the assessee to avail of this notification. It is emphasized under this notification that the gross amount (33% of which is chargeable to service tax) shall include the value of the plant, machinery, equipment, parts and any other material sold by the service provider along with the commission or installation service. The benefit of this notification can be availed for a contract only if the exemption under Notification No.12/2003-Service Tax, dated 20-6-2003 is not availed for that contract. He argued that in view of the said clarification, their activity would not be covered under the said service as greenhouse are use only for agriculture purpose and not for industrial purpose. 2.3 Ld. Consultant also relied on the decision in case of Indian Hume Pipes Co. Ltd Vs. CCE [2015(40)STR 214(Mad)] and on decision in case of Neo Structo Construction ltd Vs. CCE[2010(19)STR 361(Tri. Ahmd.)]. 2.4 Ld. Consultant argued that extended period of limitation has been invoked without any reason. He argued that on the material time there was confusion whether the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these appellants holding that the activity conducted by them falls under the category of erection, commission or installation service and is chargeable to service tax. The said claim is based on assertion that greenhouse falls under the category of plant or equipment. The history of the said service has been explained in para 14 of the decision of this tribunal in case of Neo Structo Construction ltd(Supra), which reads as under: 14. As per Finance Act, 2003, Section 65(28), the commissioning or installation service was defined as under : "(28)" commissioning or installation" means any service provided by a commissioning and installation agency in relation to commissioning or installation of plant, machinery or equipment;" 15. In 2004, due to amendment in the Finance Act, 2004, erection was also added and the service of "Erection, commissioning or installation" was brought under Section 65(39a) as under : "(39a) "erection, commissioning or installation' means any service provided by a commissioning and installation agency in relation to erection, commissioning or installation of plant, machinery or equipment;" 16. In 2005, there was a further amendment in the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... installation/commissioning of a plant or machinery. In this year's budget, the scope of service tax under installation and commissioning is being extended to include erection also. Erection involves civil works, which would otherwise fall under the category of construction services. However, in case of a composite contract for erection, commissioning and installation, the erection charges would be taxed as part of this category of service." 21. Circular No.334/4/2006-TRU, dt. 28-2-06 further clarified the scope of the existing services is being extended or clarified and the extract of the same are reproduced as under : "(9) Erection, commissioning or installation service, to include erection, commissioning or installation of structures, whether or not prefabricated;" "5.4 "Erection, commissioning or installation service" is amended to cover erection, commissioning or installation of pre-fabricated structures." 22. From the above extracts of Board circular, it is clear that - (a) The structures were not intended to be covered under Plant, Machinery or Equipments. (b) Erection refers to civil work to installation/commissioning of a plant & machinery. (c) Erection, com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee to avail of this notification. It is emphasized under this notification that the gross amount (33% of which is chargeable to service tax) shall include the value of the plant, machinery, equipment, parts and any other material sold by the service provider along with the commission or installation service. The benefit of this notification can be availed for a contract only if the exemption under Notification No. 12/2003-Service Tax, dated 20-6-2003 is not availed for that contract. In view of the above provisions, it is apparent that the activity of installation of greenhouse would be covered under the said service if the greenhouse can be considered a plant. Ld. Consultant for the appellant has strongly argued that greenhouse cannot be considered a plant and for this purpose he has relied on the definition of term Plant : H.1 The term 'plant' has been defined in various dictionaries as under: Cambridge International Dictionary of English Plant: Machines used in industry or a factory in which such machines are used. www.answers.com (i) A building or group of buildings for the manufacture of a product ; a factory. (ii) The equipment, including machinery, tool ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of structure is independent activity taking place in the factory premises. The activity of installation of greenhouse is different activity taking place at the different premises. The two activities are independently leviable to corresponding levy. Ld. Counsel has relied on the decision in case of Neo Structo Construction ltd(Supra) to assert that no service tax can be levied. In the said case facts are different. First of all there was no civil work involved, whereas in the instant case foundation of greenhouse is embedded in earth using concrete. Secondly in the said case entire activity of fabrication of the structure was taking place at site. In the said case goods were coming into existence resulting in manufacture. The Tribunal specifically held that activity undertaken by the appellant in that case amounted to manufacture of goods, under Chapter 72.08. In the instant case, there was no such manufacturing activity happening at site. The second decision relied upon by the Ld. Consultant is in case of Indian Hume Pipes Co. Ltd(supra). In the said decision, the dispute was if the pipeline is a plant. The said decision has no application in the instant case. We further foun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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