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TMI Blog2018 (10) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... udication authority and calculation of gross value for services render as to what are the services actually provided. From the perusal of the appeal record we also find that the appellant has not provided the actual information which was asked by the Department to arrive at the revaluation of Service Tax leviable. In view of the non-cooperation in providing the data as required by the Department for the payment of Service Tax the same was confirmed by the primary adjudicating authority as well as the Ld. Commissioner (Appeal) in the impugned order by applying best judgement. The issue need to be decided by the lower adjudicating authority for considering the entire evidence regarding the nature of the services provided by the appellant - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ekar v. CCE, Trichy [2010 (19) S.T.R. 82 (Tri.-Chennai)] 2. Indian Hume Pipe Co. Ltd. v. CCE, Trichy [2008 (12) S.T.R. 363 (Tri.-Chennai)] 3. Dinesh Chandra Agarwal Infracon P. Ltd. v. CCE, Ahmedabad [2011 (21) S.T.R. 41 (Tri.-Ahmd.)] 4. Larsen Toubro Ltd. v. CST, Ahmedabad [2011-TIOL-218-CESTAT-AHM = 2011 (22) S.T.R. 459 (Tri.-Ahmd.)] 6. It is clearly held by the CESTAT in the case of Larsen Toubro Ltd. (supra) that laying pipe lines for water supply projects run by Gujarat Water Supply and Sewerage Board not leviable to tax and it is for the Revenue to show that the purpose of construction of pipe lines is for commerce or primarily for commerce. Commerce would mean buying and selling not necessarily for profit acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taxable. However, if such constructions are for commercial purposes like local government bodies getting shops constructed for letting them out, such activity would be commercial and builders would be subjected to service tax. 13.4 The definition of service specifically excludes construction of roads, airports, railway transport terminals, bridge, tunnel, long distance pipelines and dams. In this regard it is clarified that any pipeline other than those running within an industrial and commercial establishment such as a factory, refinery and similar industrial establishments are long distance pipelines. Thus, construction of pipeline running within such an industrial and commercial establishment is within the scope of the levy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sub-contractor to L T‟ who eventually provided these services to Delhi Jal Board etc, is not sustainable. As far as the second portion of the contract is concerned regarding the service, it is not clear as to which service has been provided by the appellant. As per the show cause notice the services were supposed to be provided under Commercial Construction Services as defined under Section 65 (25b) and specified under the Section 65 (105) (zzzza), Construction of Complex (Residential) Services defined under Section 65 (30a) and specified under Section 65 (104) (18) (zzzh) and Works Contract Service as specified under Section 65 (105) (zzzza) of the Finance Act. In this case noticee is neither registered nor is paying the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant. If it is regarding the construction of road, the treatment as per the Finance Act, [Section 65 25 (b)], is required to be given and if it is not so then the demand which has been confirmed appears to be leviable after considering the judgment of Hon ble Supreme Court in the case of Commissioner of Central Excise, Kerala V/s Larsen Tuburo [2015 (39) STR 913 (SC)] regarding Work Contract Service. In view of above we find that the appeal needs to go back to the adjudicating authority to decide the above issue afresh regarding the portion upheld in the impugned order. 6. Accordingly, set aside the impugned order and remand the case back to the original adjudicating authority for a fresh decision. (Dictated and pronounce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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