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TMI Blog2017 (12) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... and carrying out auxiliary and incidental activities of boring, pumping and laying of concrete cannot be considered for tax liability under construction service - demand set aside. Construction of Hostel for Medical College - whether taxable under commercial or industrial construction service or not? - Held that: - certain amount is held to be liable to Service Tax by the original authority, in view of the submission made by the appellant to indicate that they have received the amount in two different financial years. Though the ld. Counsel for the appellant submitted that this is only a typographical error in their written submission, we find that the facts requires verification with basic documents - matter on remand. Demand of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , maintenance of gardens, work executed for Jalandar Municipality and Karnataka Government, there can be no case for invoking extended period in such situation - extended period rightly invoked. Appeal allowed in part and part matter on remand. - ST/55053-55055/2013-CU [DB], ST/56536/2013-CU [DB] - ST/A/57674-57677/2017-CU[DB] - Dated:- 1-11-2017 - Mr. S.K. Mohanty, Member (Judicial) And Mr. B. Ravichandran, Member (Technical) Present for the Appellant: Mr. Jitin Singhal, Advocate And Mr. Jatin Mahajan, Advocate Present for the Respondent: Ms. Neha Garg, D.R. ORDER Per: B. Ravichandran Appeal Nos.ST/55053-55055/2013-CU[DB] These first 3 appeals are on common dispute against common impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice. Ld. Counsel also contested the tax liability for landscaping horticultural works and also construction of parking facilities for Municipal Corporation, Jalandhar. He submitted, these cannot be considered as commercial activities liable to Service Tax under any category. A liability of ₹ 5,91,495/- is admitted as due to re-conciliation error resulting in short payment. The ld. Counsel contested the invocation of extended period on the ground that there is no examination or finding in this regard in the impugned order. Further, considering the nature of activities undertaken by them, there can be no allegation of suppression on their part. On the same reason the appellant also pleaded for setting aside the penalties imposed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are engaged in production and supply of RMC. Necessarily such production and supply at site requires the equipments relevant to the same. Considering the nature of RMC, the same are to be supplied and used immediately. Use of equipments for due delivery of RMC in the required site in a manner as required by the client, will not make the supplier of RMC as a person engaged in commercial construction of building. We note that the Tribunal in the case of Vikram Readymix Concrete Pvt. Ltd. 2015 (42) STR 866 (Tri.-Delhi), following the decision in GMC Concrete Mixing Pvt. Ltd. - 2012 (25) STR 357 (Tri.) held that supply of RMC and carrying out auxiliary and incidental activities of boring, pumping and laying of concrete cannot be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x service. Proposal in the notice was to tax all consideration under commercial or industrial construction service. Admittedly, the appellants have produced documentary evidence in this regard before us only. The same can be scrutinized by the original authority for exclusion from the tax liability, in view of the observation made alone. 9. The appellants contested the tax liability with reference to landscaping horticultural work. They relied on the decision of the Tribunal in their own case 2010 (17) STR 549 (Tri. Del.). We note that the Tribunal was dealing with the period prior to amendment of the tax entry with reference to management, maintenance and repair service. We note that subsequent to the amendment in the tax entry wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scuss the sustainability of demand for extended period with any reasons. Further, we also note that considering the nature of services as above and also the issues of interpretation involved including supply of RMC mix, maintenance of gardens, work executed for Jalandar Municipality and Karnataka Government, we hold that there can be no case for invoking extended period in such situation. Accordingly, demand wherever sustainable shall be limited to the normal period only. On the same reason, penalties imposed on the appellants are also set aside. 12. In view of the discussion and analysis, we note that the Service Tax liability on the activities of supply of RMC, construction of hostel for medical college and construction of apartments f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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