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TMI Blog2022 (4) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... the foundation of the proceedings against the assessee. Therefore, the demand in the aforesaid categories cannot be sustained and thus, set aside. It is further found that vide specific exemption notification being Notification No.24/2009 dated 27.07.2009, introduced to exempt the activity of maintenance or repair of road retrospectively for the period from 16.06.2005 onwards, a fact that the Ld. Commissioner has completely ignored and therefore, the demand is liable to be set aside - the Ld. Commissioner has observed in para 4.9 of the OIO that since the assessee has not chosen to seek registration under the said category of works contract service, the services would be classifiable under other categories as per SCN even though the same is classifiable under Works Contract Service. In the case of PES ENGINEERS PVT. LTD VERSUS CCE ST, HYDERABAD-I AND (VICE-VERSA) [ 2017 (7) TMI 687 - CESTAT HYDERABAD] the issue involved for demand pertaining to the period January 2005 to March 2012 under Erection Commissioning and Installation Service. The Tribunal has held that the services were classifiable under Works Contract Service and not Erection Commissioning and Installation S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... projects, construction of hospital buildings, etc. 2.2 The Ld. Commissioner has dropped the demand of ₹ 23,99,730/- (out of the total demand of ₹ 1,17,08,022/-) in respect of construction activities undertaken for construction of drain for Durgapur Municipal Corporation, construction of road, repair and maintenance of road for the period upto 15.06.2005, improvement of level crossing for railways for the period upto 15.06.2005, repair and maintenance of ITI boundary wall for schools by holding them to be used for non-commercial purpose. Against the demand dropped by the Ld. Commissioner as above, the Revenue is in appeal before us. 2.3 The Ld. Commissioner has upheld the demand of ₹ 93,08,292/- on cleaning services, repair and maintenance services of road w.e.f. 16.06.2005, improvement of level crossing for railways for the period from 16.06.2005 under repair and maintenance services, etc. without providing the break-up of the tax amount. The same is under challenge in the appeal filed by the Appellant assessee. 3. Heard Sri Kartik Kurmy, Advocate for the assessee and Sri S. Mukhopadhyay, Departmental Representative for the Revenue through video conferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the larger period of limitation is not available. Since the dispute in the instant case relate to proper classification of service and interpretation of statutes, the extended period of limitation is not available as has been held in the case of Calcutta Industrial Supply Corporation vs. CST 2019 (31) GSTL 487 (Tri-Kol.) and in the case of Continental Foundation Jt Venture vs. CCE 2007 (216) ELT 177 (SC). 5. The Ld. Departmental Representative submitted that the Ld. Commissioner erred in dropping the demand in respect of activities undertaken for construction of road. The said activities were for black topping of road which were not construction activities but maintenance or repair service and hence, liable to tax. He also reiterated the observations made by the Ld. Commissioner in respect of portion of activities where the demand has been confirmed and submitted that the appeal filed by the assessee be rejected. 6. We have carefully gone through the appeal records and submissions made by both sides. We find that nowhere in the entire Show Cause Notice (SCN), the demand of service was proposed in the category of Cleaning Services and Erection, Commissioning and Installation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hyd.)] the issue involved for demand pertaining to the period January 2005 to March 2012 under Erection Commissioning and Installation Service. The Tribunal has held that the services were classifiable under Works Contract Service and not Erection Commissioning and Installation Service , demand could not be sustained. The relevant paras of the Tribunal order is as under : ..5.8 Viewed in this light and also taking note of the fact that the work has been performed by the assessee on specific sub-contract agreements for specific works detailed therein, the nature of work cannot, but, be otherwise than Works Contract and definitely not under ECIS as perceived by the department for the period upto March, 2010. The nature and scope of the activity performed by the assessee also answers to the scope of works contract defined in Section 65(zzzza) of Finance Act, 1994 for fabrication and installation work in respect of tunnel for transport of water from the Dam projects. 5.9 Once it is clear that the impugned activity comes within the ambit of works contract , the same would also be taxable only w.e.f. 1-6-2007, when the said service was brought into the fold of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntract was in respect of tunnels for dams/power projects, the same would then be excluded from taxability thereunder in view of the exclusion in Section 65(105)(zzzza) of Finance Act, 1994. 5.16 In the event, all the demands of differential service tax liability confirmed in the proceedings related to the appeals ST/981/2009, ST/1248/2010 and ST/26552/2013 cannot, therefore, sustain and will have to be set aside, which we hereby do. For these very same reasons, the appeals ST/981/2009; ST/1248/2010 and ST/26552/2013 filed by assessee will succeed and they are therefore allowed with consequential benefits if any. 5.17 When there cannot be any taxability on the impugned activity, the appeal No. ST/962/2009 filed by Revenue against reduction of tax liability by the adjudicating Commissioner will also fail and hence the same is dismissed. 5.18 Coming to the Appeal No. ST/412/2007 filed by the assessee, the same relates to claim of refund of an amount of ₹ 28,06,915/- filed by the assessee on their contention that the activity does not amount to providing of taxable service as ECIS. The claim was rejected by original authority on the grounds that service tax has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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