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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 ..... s misplaced as the said document was recovered from the appellant's own premises - extended period of limitation is rightly invoked. Various other issues have not been examined in the impugned order - matter is remanded to the adjudicating authority to consider all aspects - appeal allowed by way of remand. - ST/698 to 700/12 - A/89371-89373/17/STB - Dated:- 31-8-2017 - Mr Ramesh Nair, Member (Judicial) And Mr Raju, Member (Technical) Shri. L. Badrinarayan, Advocate with Shri. Vinay Jain, C.A. for the Appellants Shri. M.P. Damle, Asstt. Commissioner (A.R.) for the Respondent ORDER Per : Raju These appeals are filed by M/s. Sriroz Consultants Pvt Ltd, M/s. Shree Filters Fabricators and M/s. Arun Engineering Works against demand of Service Tax and imposition of penalties on the activity of Construction of Green House under Erection, Commission and Installation Services. 2. Ld. Consultant for the appellant argued that they are engaged in construction of green house. Ld. Consultant argued that greenhouses are made of steel structure, which is covered with plastic material. Green houses are generally used for growing agriculture produce. The said gre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n means the act of putting an equipment, machinery or plant into its place and making it ready for use. The activity of installation will start after erection which would refer to putting up civil structures. Commissioning of a plant would mean operationalising an installed plant/equipment/machinery. In this backdrop it is clarified that putting up a water tank, piping, electric wiring, in a residential premises etc. would not be covered in the definition of taxable service and thus, would not be taxable. However, installing a booster pump, air-conditioner, water filter, water heater etc. would be covered in the definition and be taxable, as all these things are machinery or equipment. Notification No.1.3 18/2003-Service Tax, dated 21-8-2003 has been issued which exempts commission or installation services provided by a commis-sioning or installation agency other than a commercial concern. Accordingly, the commissioning or installation services provided by an individual will be exempt from service tax. Notification No.1.4 19/2003-Service Tax, dated 21-8-2003 has been issued which provides that in case of a contract which involves the commissioning or installation servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive of all taxes. In such a circumstances, it cannot be alleged that they had collected the service tax from the client as there was no separate entry of service tax in the said invoice. 3. Ld. A.R. relies on the impugned order. He further argued that appellant were constructing structure from their factory and same were cleared for installation at site. He argued that demand notice for manufacture of structure was for their activity at the factory and demand notice for the erection and commission service was related to their activity on site, thus there is no duplicate levy. 3.1 Ld. A.R. further argued that even in case of contracts involving supply of material, separate invoice for sale and services were issued and therefore the said activity would not fall under the works contract service. 3.2 Ld. A.R sought to rely on the decision in case of Commissioner of Customs, Chennai Vs. Manjushree Plantations Ltd[2009(239)ELT 90 (Tri. Chennai)]. He also sought to rely on clarification issued vide Circular No.302/18/97-CX dated 10-3-1997 wherein it has been clarified that greenhouse can be construe as a equipment as it is required for production the export products like Flo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular No. 58/8/2003, dt. 20-6-2003. The extract of the same are reproduced below : A doubt has been raised as to whether charges for erection of plant are covered under the service tax or only commissioning and installation charges. It is clarified that the law specifically provides for taxation of commissioning and installation of plant, machinery or equipment. Thus, all activities other than the commissioning and installation of the plant/machinery/equipment per se, will not be chargeable to service tax. 20. In the Circular No.B2/8/2004-TRU, dt. 10-9-04, as per the changes in the Budget for 2004-2005, the service tax on installation commissioning was extended to erection services also and Board has clarified that erection would refer to civil work to installation/commissioning of a plant or machinery. The extract relating to the clarification is reproduced below : 14. Extension of service tax on installation and commissioning, to erection services : Service tax was levied on commissioning and installation of plant, machinery and equipment w.e.f. 1-7-2003. The general practice is that 'erection, commissioning and installation' are contracted as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of installation means the act of putting an equipment, machinery or plant into its place and making it ready for use. The activity of installation will start after erection which would refer to putting up civil structures. Commissioning of a plant would mean operationalising an installed plant/equipment/machinery. In this backdrop it is clarified that putting up a water tank, piping, electric wiring, in a residential premises etc. would not be covered in the definition of taxable service and thus, would not be taxable. However, installing a booster pump, air-conditioner, water filter, water heater etc. would be covered in the definition and be taxable, as all these things are machinery or equipment. Notification No.19/2003-Service Tax, dated 21-8-2003 has been issued which exempts commission or installation services provided by a commis-sioning or installation agency other than a commercial concern. Accordingly, the commissioning or installation services provided by an individual will be exempt from service tax. Notification No.1.4 19/2003-Service Tax, dated 21-8-2003 has been issued which provides that in case of a contract which involves the commissioning or install ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enclosed construction over a plot of land, having a roof and usually windows and often more than one level, used for any of a wide variety of activities, as living, entertaining, or manufacturing . In the website of business Dictionary.com term as under: 1. Permanent or temporary structure enclosed within exterior walls and a roof, and including all attached apparatus, equipment, and fixtures that cannot be removed without cutting into ceiling, floors, or walls. 5.1 The greenhouse is a building on ground and is enclosed a structure. The said structure contains ventilation and window/doors. In view of the above, it is apparent that a greenhouse would fall under the category of 'building'. Greenhouse is used for commercial production of crops, vegetables, fruits and other agriculture produce. As a result, use of greenhouse is industrial in nature. In these circumstances, it cannot be denied that the said greenhouse would fall under the definition of plant. In view of the above, it is apparent that appellants are engaged in the activity of installation of plant (greenhouse), and therefore the appellants are liable to pay services on the said activity. 5.2 Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax liability. The argument of the Ld. Consultant that the said document cannot be relied as it is unsigned is misplaced as the said document was recovered from the appellant's own premises. In view of the above, we are of the opinion that extended period of limitation is rightly invoked. 5.3 Now coming to the other issue regarding following claims of the appellant. (a) Appellants have argued that some of the contracts are in the nature of the works contract and price is inclusive of the material. Revenue has countered this by stating that separate invoice of sale and service have been seized, therefore they are not works contract. Facts need to be verified. (b) abatement of material portion of supply has not been given to the appellant. (c) the demand is based on balance sheet figure which related to accruals basis and not to receipt and therefore demand has wrongly made. We find that aforesaid issue has not been examined in the impugned order. As a result, the impugned order is set aside and matter is remanded to the adjudicating authority to consider aforesaid aspects. Appeal is allowed by way of remand. (Pronounced in court on 31/8/17) - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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