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TMI Blog2009 (2) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and discharge of service tax liability. It was also noticed by the authorities that the services rendered by the appellant for soil testing and survey work would fall under the category of "Consulting Engineer Services" and the amount collected by the appellant for such services has escaped assessment and discharge of service tax liability. Based upon such conclusions, show-cause notice dated 19-4-2006 was issued to the appellant directing them to show cause as to why: (i) The Soil Testing works undertaken by them should not be brought under the Consulting Engineers Services. (ii) The service tax amounting to Rs. 34,18,016 (Rupees thirty four lakhs eighteen thousand and sixteen only) and Education Cess amounting to Rs. 35,403 (Rupees thirty five thousand four hundred and three only) as detailed in the Annexure B to this show-cause notice for the period from 1-10-2000 to 31-12-2005 should not be demanded from them under proviso to sub-section (1) of section 73 of the Finance Act, 1994 read with rule 6 of the Service Tax Rules, 1994. (iii) The Surveying works undertaken by them should not be brought under the Consulting Engineering Services. (iv) The service tax amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntested the show-cause notice on various "grounds namely on the ground that the Soil Testing and Survey Work does not fall under the category of Consulting Engineer and that the demand of the duty for piling works during the period 10-9-2004 to 18-4-2005 is time barred. The Adjudicating Authority after considering the oral and written submission made, came to the conclusion that appellant is liable to discharge service tax liability on the piling work for commercial building, piling work, residential premises, soil testing and survey works ordered as under: (i) The piling works undertaken by M/s. Geo Foundations and Structures (P.) Ltd. Cochin for construction of industrial or commercial buildings will fall under the category of service tax viz., Industrial Construction Services as defined under clause (25b) of section 65 of the Finance Act, 1994 and hereby confirm an amount of Rs.10,62,668 (Rupees ten lakhs sixty two thousand six hundred and sixty eighty only) as service tax including education cess payable by them during the period from 10-9-2004 to 31-12-2005 under the provisions of section 73 of the Finance Act, 1994, as against the demand of Rs.12,23,682 raised in the show-ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax continued, as per provisions under section 76 ibid. (viii) I impose a penalty of Rs.1,000 (Rupees one thousand only) under section 77 of the said Act for violation of the provisions of section 70 ibid. (ix) I further impose a penalty of Rs. 50,28,853 (Rupees fifty lakhs twenty eight thousand eight hundred and fifty three only) under section 78 of the said Act for suppressing the material facts from the notice of the department with an intent to evade payment of tax. (x) Show-cause Notice No. 23 /2006/ST, dated 19-4-2006 is disposed of on the above lines. The appellant is aggrieved by the abovesaid Order-in-Original. 4. The learned Counsel appearing on behalf of the appellant submits that as regards the duty liability on the piling work done by them on the Commercial Building and the Residential Premises, they are not disputing the same. It is his submission that for the service tax liability on the residential premises is effective from 16-6-2005, they are discharging service tax liability. As regards the service tax liability on the piling work for commercial buildings, it is his submission that show-cause notice was issued on 19-4-2006 invoking the extended period. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the fact that the appellants had never produced invoices etc. with the authorities, so that they could arrive at the correct assessments. It is her submission that the Adjudicating Authority has in paragraph 25 of Order- in-Original given the benefit to the appellant as regards the deductions claimed on the complexes of residential premises of less than 12 apartments prior to 16-6-2005. It is also submitted by her that the Adjudicating Authority in Order-in-Original at paragraph 27 has categorically held that the service tax liability on the piling work for commercial and residential buildings is liable to be discharged by the appellant. As regards the soil testing and survey work under the category of Consulting Engineer Service, it is her submission that the appellants themselves have agreed that the soil testing and survey work included (i) field test (ii) laboratory test and (iii) preparation of soil investigation report. 6. It is her submission that the appellants themselves having agreed, that they are doing all these things, it would indicate that they are covered under the Consulting Engineer Service. She draws our attention to paragraph 31 of the Order-in-Original wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant that the service tax liability for the period 10-9-2004 to 19-4-2005 is time barred, as it was for the appellant to discharge the service tax liability for this period, having taken the service tax registration certificate from the authorities. Having not done so, the appellant cannot claim the benefit of the limitation. In view of this, we hold that the appellant is liable to discharge the service tax liability on the piling work done on the commercial construction during the period from 10-9-2004 to 31-12-2005, but exact amount of service tax liability needs re-quantification, as regards deduction of amounts not received by them, amount as infrastructure projects, cum-duty value etc. 9. As regards the services relating to the construction of residential complexes, for the period 16-6-2005 to 31-12-2005 we find that the appellant has not challenged the said service tax liability. It is the claim of the appellant that the deduction which has been granted by the Adjudicating Authority needs to be reconsidered as the Adjudicating Authority has not considered the deductions which are available to them under the Notification 17/2005 and also as regards the cum-duty price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion that soil testing and survey work under taken by the appellant would fall under Consulting Engineer Services. We are unable to agree to this reasoning given by the Adjudicating Authority. The services rendered by the Consulting Engineer Services, would not, by any stretch of imagination include the services rendered by the appellant. We find that number of decisions which would indicate that when a specific category of services are brought into the service tax net subsequently, these services will not be covered under any other services earlier. We find that the Tribunal decision in the case of Motilal Nehru National Institute of Technology v. CCE [2006] 4 STT 128 (New Delhi-CESTAT) is on identical issue. We may reproduce the said ratio: "6. We find that in this case the appellant are admitting that they are also providing the consultancy in respect of design etc. In addition to this, they are also testing the materials to find out physical property which does not amount to consultancy. The demand is confirmed after taking into consideration the consolidated entry regarding income from technical consultancy engineering service. The appellant also produced the evidence by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in that case, it was held that leased circuit to telephone users is different from 'telephone service'. The Board Circular in F-B-11 /1/01 TRU, dated 9-7-2001 also clarifies that public funded research institutions receiving grants or aids from Government for conducting research/project work would not come within the ambit of service tax as no services is rendered to anyone. In view of the citations and clarification cited supra the contention of the appellant is accepted. The impugned order is set aside by allowing the appeals."(p.181) 12. It is also seen that in an identical situation in respect of survey and mapping, the Tribunal in the case of Multi Mantech International (P.) Ltd. (supra) has held as under: "Consulting Engineer service- Assessee is a contractor to GAIL and charges invoice value inclusive of all taxes-Claims refund for 'survey and mapping' survey for a period not covered under service tax-Refund granted but credit to Consumer Welfare Fund on the ground of unjust enrichment-Assessee claims it did not charge service tax separately in its invoice-Since the assessee is not able to disprove that no service tax was charged and it is settled law that if invoice is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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