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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 ..... ity is not subject to levy of service tax. Further, the Tribunal in the case of CCE, LUCKNOW VERSUS M/S RAJ ELECTRIC WORKS [ 2017 (9) TMI 793 - CESTAT ALLAHABAD ] had held that the activity of laying of opting fibre cables for M/s.BSNL is not subject to levy of service tax. The Tribunal in the said case had followed the Board s circular and also other decisions which have categorically held that the activity is not subject to levy of service tax. The demand of service tax cannot sustain and requires to be set aside. The issue on merits is answered in favour of the appellant. Time Limitation - suppression of facts or not - HELD THAT:- There is no suppression of facts brought out by the Department. The appellant has accounted the entire consideration received by them in their books. The demand has been raised on the figures obtained from the records maintained by the appellant. Further the issue is interpretational in nature. In such circumstances, the demand raised invoking the extended period also cannot sustain. The show cause notice is time-barred. The appellant succeeds on limitation also. The impugned order is set aside. The appeal is allowed. - HON BLE MS. SULEKHA BEEVI. C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and clear the doubt, had enquired from M/s.BSNL, Trichur, as to whether service tax to be paid for the activity of laying of cables. M/s.BSNL, Trichur replied to appellant vide their letter dt. 25.01.2014 stating that the said activity is not subject to levy of service tax and that they had 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 ground of limitation also. It is submitted that the department itself has taken the contrary view in different cases and the issue is therefore interpretational in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the appellant is liable to discharge service tax for the activity of laying of optic fibre cables. The definition of Erection, Commissioning or Installation Service under Section 65 (39a) of the Finance Act, 1994 has already been reproduced above. The department is of the view that the said activity would fall under erection, commissioning or installation service and therefore the appellant is liable to pay service tax. On the contrary, the learned counsel for appellant has relied upon Board s Circular No.123/5/2010. The relevant part of the Board s circular is reproduced as under : Circular No. 123/5/2010-TRU, dated 24-5-2010 F.No. 332/5/2010-TRU Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Applicability of Service tax on laying of cables under or alongside roads and similar activities - Clarification regarding. Disputes have arisen in some parts of the country regarding applicability of service tax on certain activities such as shifting of overhead cables to underground on account of renovation/widening of roads; laying of electrical cables under or alongside roads/railway tracks; between grids/sub-stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 telecommunications cables also. We therefore are of the considered opinion that the clarification issued by the Board would apply and that the said activity is exempted from levy of service tax. 7. It is also to be noted that the appellant had written a letter to M/s.BSNL, Trichur, Kerala to ascertain the leviability of service tax on the activity carried out by them. M/s.BSNL had replied vide letter dt. 25.01.2014 informing that they had availed credit of the service tax paid by their contractor and the Department had intimated them to reverse the credit informing that the said service is exempted from levy of service tax and that they are not eligible to avail the credit. Relevant part of the letter in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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