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TMI Blog2023 (12) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals) sets aside the order dated 19.10.2015 passed by the Assistant Commissioner allowing the refund claim filed by the appellant. 2. The appellant is engaged in the business of forgers, fabricators, manufacturers, importers, exporters of and dealers in industrial fasteners, machine tools, agricultural implements, railway track fittings and fasteners and other such products. 3. M/s Voestalpine VAE GMBH [V.V.G.] had received an order from Delhi Metro Railway Corporation, New Delhi [Delhi Metro] for supply of Gauge Turnouts (Railway Track items) on 'Delivery Duty Paid' basis for its Jaipur and Faridabad metro projects. 4. The appellant is a subsidiary of V.V.G. In order to execute the contract with Delhi Metro, V.V.G. awarded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole of the service tax leviable thereon under section 66B of the said Act. 14 (a) Services by way of construction, erection, commissioning, or installation of original works pertaining to, - an airport, port or railways, including monorail or metro". 6. The Assistant Commissioner, after examining the verification report submitted by the Range Officer which stated that the appellant had not taken any CENVAT credit in relation to the relevant invoices and that the appellant had also submitted a Certificate from a Chartered Accountant that the foreign company had not paid any service tax to the appellant, and after examining Entry No. 14 of the notification granted refund by the order dated 19.10.2015 holding that : "On perusal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax amounting to Rs. 3,24,326/- is admissible. In view of the above, I pass the following order :- In view of the above facts and circumstances of the case, I allow refund claim of Rs. 3,24,326/- (Rupees Three Lacs Twenty Four Thousand Three Hundred Twenty Six only) to be paid through account payee cheque No. 749883 dated 19.10.2015 to the party". 7. Feeling aggrieved, the department filed an appeal before the Commissioner (Appeals) who, as noticed above, by the order dated 26.12.2016 set aside the order passed by the Assistant Commissioner and allowed the appeal. The relevant portion of the order passed by the Commissioner (Appeals) is reproduced below :- "11. The respondents had provided "Machining of rails" services to M/s Voesta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were supplied to DMRC for erection & installation of railway tracks. The services were thus part of commission & installation of original work pertaining to metro. These were not services of commissioning or installation per se but a part of it. 13. As mentioned above, it is not essential that service is provided directly to DMRC but it should pertain to 'metro'. However, the service is only part of installation & commissioning activity undertaken by M/s Voestalpine VAE GMBH but not the service of installation & commissioning undertaken by respondents. In a way service of "machining of rails" provided by respondents to M/s Voestalpine VAE GMBH is an input service for the service they (M/s Voestalpine VAE GMBH) would provide to DMRC which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Commissioner (Appeals). 10. The submissions advanced by learned Charted Accountant appearing for the appellant and the learned authorized representative appearing for the department have been considered. 11. As noticed above, V.V.S. had received an order from Delhi Metro for supply of Gauge Turnouts (Railway Track items) for its Jaipur and Faridabad Metro projects. The foreign company has a project office in India. The project office in India imported rail, rail fittings, crossing and other materials and sent some of it to the appellant for fabrication purpose (machining/grinding) after which the same was supplied to Delhi Metro. The work that was entrusted to the appellant was machining of rails/crossing which is important ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the appellant would not be entitled to exemption under the exemption notification as it is not material whether all of the commissioning or installation was done by the appellant or only part of it. 14. The Commissioner (Appeals) also proceeded to hold that machining of rails cannot be treated as providing service by way of commissioning or installation of original works pertaining to metro. It is not possible to accept this finding. The Project Office of V.V.S. had imported rail, rail fittings, crossing and other material which were supplied to the appellant for machining and grinding after which they were sent to the Delhi Metro for laying of railway tracks. Such services would clearly fall under commissioning or installation of or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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