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TMI Blog2023 (6) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... omer and collected by the appellant. However, this issue is not raised either in the show cause notice or in the OIO, which only proceed on the assumption that the appellants have rendered Commercial or Industrial Construction Service . The sale of RMC does not involve any service angle in spite of the fact that the appellants are pumping the RMC to the desired floor at the request of the customers. The activity of pumping RMC is incidental to the sale of RMC, on which requisite VAT has been paid, by the appellants, is incidental to the sale of RMC. It is further found that showing pumping charges separately in the work orders or invoices does not materially alter the situation - Option for installation is optional for the purchaser. For the reason that the dealer is charging installation charges, the dealer cannot be held to be a service provider. Therefore, the argument of Revenue that the activity of the appellant amounts to Commercial or Industrial Construction Service is incorrect. Judgment in the case of L T [ 2015 (8) TMI 749 - SUPREME COURT ] was rendered by the Hon ble Supreme Court in 2015, holding that indivisible services ought to be categorized under Works Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4; the said service becomes applicable only when a person constructs a commercial building, a pipeline or conduit; when a person provides Completion and Finishing Services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering etc. in relation to construction of a new structure or repair, alteration, renovation or restoration of an existing building. The appellants are mere suppliers of RMC and on the request of the customers, they arranged to supply the same at the desired floor by pumping. She submits that in their own case, the Tribunal has given a decision in their favour vide 2016 (44) STR 274(Tri. Delhi). She further relies upon the following case laws: 1. Board's circular No. 80/10/2004-ST dated 17.09.2004 2. Circular No. 237/1/96-CX dated 12-08-1996 3. Circular No. 368/1/98-CX dated 06.01.1998 4. Ultratech Concrete Versus Commissioner Of Service Tax, Delhi 2016 (44) S.T.R. 274 (Tri. - Del.) 5. GMK Concrete Mixing Pvt. Ltd. Versus Commissioner Of Service Tax, Delhi 2012 (25) S.T.R. 357 (Tri. Del.) (affirmed by Supreme Court in - 2015 (38) S.T.R. J113 (S.C.) 6. Vikram Ready Mix Concrete (P) Ltd. Ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the gross taxable value in terms of Notification No.12/2003; even if assuming that the appellant is providing construction services, services provided to SEZ are not taxable; since the alleged service provided by the appellant involves goods and services, the service needs to be categorized under Works Contract Act and accordingly cannot be taxed under Construction Services. Even after 16.06.2008, from which they started showing the pumping charges separately. She relies upon the following case laws: 1. Commissioner Of Service Tax Versus Lsg Sky Chef India (P.) Ltd. 2011 (4) TMI 911-Karnataka High Court. 2. M/S Agrawal Colour Advance Photo System, M/S Agrawal Colour Quick System, M/S Agrawal Colour Photo Industry Versus Commissioner Of Central Excise And Another 2020 (4) TMI 799 - Madhya Pradesh High Court. 3. Commissioner, Central Excise Customs Versus M/s Larsen Toubro Ltd. and others - 2015 (8) TMI 749 - Supreme Court. 4. M/s Kumar Builders Versus Commissioner Of Service Tax, New Delhi, 2023 (5) TMI 569 - CESTAT Chandigarh 4. Shri Ravinder Jangoo, learned Authorized Representative for the Department reiterates the findings of the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants have rendered Commercial or Industrial Construction Service . 6. We find that in the case of GMK Concrete Mixing Pvt. Limited, upheld by Hon ble Supreme Court 2015 (38) STR J113 (SC), Tribunal held that: 5. Record does not reveal involvement of any taxable service aspect in the entire supply of RMC. Rather the contract appears to be a sales contract instead of a service contract. In absence of cogent evidence to the effect of providing taxable service, primary and dominant object of the contract throws light that contract between the parties was to supply ready mix concrete (RMC) but not to provide any taxable service. Finance Act, 1994 not being a law relating to commodity taxation but services are declared to be taxable under this law, the adjudication made under mistake of fact and law fails. We find that Tribunal in the case of Vikram Reddy Mix Concrete Pvt. Limited (supra) followed the above decision and such decision was also upheld by the Hon ble Supreme Court in 2016 (42) STR J282 (SC). 7. Hon ble Karnataka High Court in the case of ACC Ltd. (supra) has relied upon the above cases and held that: 13. In view of the above judgments, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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