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TMI Blog2024 (4) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, it was noticed that the appellant had not discharged appropriate service tax on the amounts received for the services of cable laying provided to M/s.BSNL. The department was of the view that the said activity falls under 'Erection, Commissioning or Installation Service' as defined under Section 65 (39a) of the Finance Act, 1994. Show cause notice was issued proposing to demand the service tax under the said category of service along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand of service tax along with interest and imposed penalties. On appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 2. The Ld. Counsel Shri S. Murugappan appeared and argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been intimated from the department alleging wrong availment of credit on the service tax paid for the activity of laying of cables. It is submitted by the learned counsel that the department itself has taken the view that the activity of laying of cables is not subject to levy of service tax. In the said letter, M/s.BSNL, Trichur had adverted to the clarification issued by the Board vide Circular No.123/5/2010-TRU dt. 24.5.2010. 2.3 Ld. Counsel referred to the Circular and submitted that the subject mentioned in Circular refers to applicability of service tax on laying of cables and similar activities. This itself would show that the clarification issued is not confined to levy of 'electric cables' only. 2.4 Ld. Counsel argued on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork, duct work and sheet metal work; or (d) thermal insulation, sound Insulation, fire proofing or water proofing; or (e) lift and escalator, fire escape staircases or travelators; or () such other similar services" 3.1 It is pointed out by Ld. A.R that the activity rendered by the appellant is laying of optic fibre cables. The Board Circular which is referred to by the appellant would apply only to laying of electric cables. Para 11.14 to 11.16 of the OIO has been adverted to by the Ld. A.R to submit that the original authority has discussed in detail that the activity which is exempt as per the Board's circular is the activity of laying cable for electricity and not for telecommunications. In para-5, the Commissioner (Appeals) also discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e roads/railway tracks; between grids/sub-stations/transformers the distribution points of residential or commercial complexes and such activities as electrification of railways, installation of street-lights, traffic lights, flood-lights. This clarification takes into account the taxability of different activities taking into account the scope of all services (such as site formation/excavation/ earth moving service, commercial or industrial construction services; erection, commissioning or installation services; or works-contract service) that are presently taxable as well as those which are covered under the Finance Act, 2010. ... .... ..... 3. The taxable status of various activities, on which disputes have arisen Based on the fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, commissioning or installation services [section 65(105)(zzd)]. 8. Railway electrification, electrification along the railway track Not a taxable service under any clause of sub-section (105) of section 65 of the Finance Act, 1994. 6. From the above, it can be seen that the department has issued clarification on disputes that have arisen with regard to works related to cables. In the table given, in para-3 at Sl.No.3, it is mentioned that the laying of electric cables is exempt from levy of service tax. Sl.No.2 states that 'laying of cables under or alongside roads' is exempted from levy of service tax. Sl.No.2 is not qualified with the word 'electric cable'. The word 'cable' is used in general sense and will apply to telecommunicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had clarified that in case the assessee pays any amount as Excise duty on exempted goods, the same cannot be allowed as CENVAT CREDIT to the downstream units, as the amount paid by the assesee cannot be termed as 'duty of excise'. The amount so collected by the assessee from the buyers will have to be deposited with the Central Government in terms of Section 11D of Central Excise Act, 1944. Moreover, the Cenvat Credit of such amount utilized by downstream units also needs to be recovered in terms of rule 14 of Cenvat Credit Rules, 2004. The legal position clarified vide the Said circular appears to be applicable in case of Service Tax paid on non taxable service. Hence service tax credit utilized on such amount is to be reversed wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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