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TMI Blog2018 (5) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has held that there is no proof that the appellants have collected pumping and mobilization charges relating to RMC batched by others. In such circumstances, the confirmation of demand of service tax cannot sustain, being beyond the scope of the show cause notice - Admittedly, the appellant have discharged VAT on the entire amount received by them for supply of RMC which includes charges collected for mobilization, pouring and pumping. The activity of pumping and pouring would not fall under BSS. Apart from these, the appellants has been paying excise duty on RMC manufactured by them @ 1% with effect from May 2011 - Since the demand in the show cause notice confines to the pouring and pumping charges in respect of RMC manufactured b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing charges of ₹ 100/- per cubic meter and also charges such as mobilization, pumping and labour charges which was separately shown in their P L accounts and no VAT was paid on these charges. As the appellant had not discharged service tax on the service provided by them to clients in respect of RMC supplied to other manufacturers, the department was of the view that the said activity falling under Business Support Service is liable to service tax. Show cause notice was issued demanding service tax under the category of Business Support Services, along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand of service tax for the period subsequent to 1.5.2011 along with inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction Service. The Tribunal in the case of GMK Concrete Mixing Pvt. Ltd. 2012 (25) STR 357 (Tri. Del.) and in the case of Vikram Ready Mix Concrete (P) Ltd. 2016 (42) STR 866 (Tri. Del.) had observed that the activity of pumping and pouring are only ancillary and incidental activities and were not taxable under Commercial or Industrial Construction service. The Hon ble Apex Court had upheld the decision in the case of GMK Concrete Mixing Pvt. Ltd. reported in 2015 (38) STR J113 (SC). Thus, the department has been classifying the said activity under different heads and there is ambiguity as to whether the activities are exigible to service tax or exigible to excise duty at the end of the department itself. Since the issue is interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice, we find that the appellant has consistently put forward the plea that they never handled any pumping of RMC supplied by other RMC manufacturers and have not collected any such charges. The department has raised the demand merely relying upon a clause in the agreement. The department except for reproducing certain clause contained in a single purchase order dated 17.3.2010 issued by M/s. Simplex Infrastructure Ltd. has not produced any other material to sustain the allegation that appellants have collected such pumping, pouring etc. charges in respect of RMC manufactured by from others. After analyzing the entire documents as well as submissions of the appellant, in para 6.2 of the impugned order, the Commissioner has held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities, pantry and security; 7. Even going through this definition, we cannot find that the activity of pumping and pouring would fall under BSS. Apart from these, the appellants has been paying excise duty on RMC manufactured by them @ 1% with effect from May 2011. The department is collecting excise duty as the activity of production of RMC amounts to manufacture, as submitted by Ld. consultant. 8. The decisions rendered in the cases of GMK Concrete Mixing Pvt. Ltd. (supra) and Vikram Ready Mix Concrete (P) Ltd. (supra) relied by the ld. consultant has analyzed the issue whether the activity of pouring, pumping and laying of concrete is a taxable service. The Tribunal has held that primary and dominant object of contract between p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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