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TMI Blog2024 (6) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... nger res integra and has been decided in favour of service providers such as the respondent, in a number of cases. The very same Notification was considered by the Bench of the Tribunal in the case of M/S KEDAR CONSTRUCTIONS VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLHAPUR [ 2014 (11) TMI 336 - CESTAT MUMBAI] wherein the Bench has considered the activity of the appellant therein of construction of sub-station and also for maintenance of sub-station. The activity of respondent is clearly exempted from payment of Service tax. The impugned order is upheld. The appeal filed by Department is dismissed. - Hon ble Mr. Ramesh Nair, Member (Judicial) And Hon ble Mr. C.L. MAHAR, Member (Technical) Shri A K Mudvel, Superintendent (AR) appeared for the Appellant Shri Hardik Modh, Advocate appeared for the Respondent ORDER RAMESH NAIR The brief facts of the case are that M/s. Adani Enterprises Ltd. (Respondent) are registered with Service tax department under the categories of management consultants, C F Agency, Consulting Engineer, Manpower Recruitment Agency, Port Services, cargo handling services etc.. Respondent had filed refund claim of Rs. 95,35,833/- under their application dtd. 04.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er segregated into various activities in the work order. Further, invoices issued by the respondent indicate that each job carried out by respondent and its value has been shown separately. Hence it can be seen that the respondent has not only undertaken the only activity as mentioned at Sr. No. 2 and 3 of the table under para 3 of the circular but many other activities. As per the agreement between M/s. GETCO and Respondent, dtd. 23.10.2009, M/s GETCO has allotted different jobs to the claimant which includes Check Survey, Excavation, Installation of Steel re-inforcement in concrete foundation, sub-setting. Concerting of foundation by M20/M15 mixture, Grounding of towers with pipe type earthing, Grounding of towers with counter poise type, Erection of super structure upto 6 meter extension. Fixing of anti-climbing devices, Fixing of DP/NP/PP/CIP, Track welding of nuts upto 10 mtrs. height , Stringing of two ground wires and Stringing of ACST Twin Moose 12 conductor for double credit etc. From the facts it is observed that the Board s circular allows exemption only to the activities viz. Laying of cables under and alongside road and Laying of electric cables between grids/sub-stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax leviable thereon. He placed reliance on the following judgements:- (i) M/s. Badri Singh Vs. CCE -2018(6)TMI 1255. (ii) M/s Deepak Cables (India) Ltd. Vs. Commissioner of Central Tax 2018(6)TMI 673. (iii) Royal Electricals Vs. Commissioner of Central Excise and Service tax 2018(9) GSTL 25. 3.3 He further submits that the laying of underground cable is not chargeable to Service tax. He placed reliance on the following decisions:- (i) Siddharth Industries Vs. Commissioner of Central Excise and Service tax -2023(4)TMI 924; (ii) Commissioner of Central Excise Vs. H.M. Satyanarayan Engineers and Contractors 2018(8)TMI 736. 4. Heard both the sides and perused the records. We have gone through the copy of work order issued to the respondent by M/s GETCO for supply erection of works 400KV D/C Mundra-Zerda Line No. 2-330-563 KM transmission lines on Turnkey basis. We noticed that contract issued by M/s GETCO was lump sum value. Erection works of transmission line has been segregated in various activities under Schedule I of Part B of the work order. The entire work allotted to the respondent falls within the Circular which read as under :- Cable laying under or alongside roads Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or electronic device (i.e. a machine or equipment that uses electricity to perform some other function) the same is outside the purview of this taxable service. (iii) Works Contract incorporates the inclusions and exclusions of the aforementioned two taxable services (amongst others) and it is the nature of the contract (i.e. a contract wherein the transfer of property in goods involved is leviable to a tax as sale of goods) rather than the nature of activities undertaken, that distinguishes it from the previously stated taxable services. Thus, even in the case of works contract if the nature of the activities is such that they are excluded from aforesaid two services then they would generally remain excluded from this taxable service as well. (iv) site formation and clearance, excavation, earthmoving and demolition services are attracted only if the service providers provide these services independently and not as part of a complete work such as laying of cables under the road. 3. The taxable status of various activities, on which disputes have arisen Based on the foregoing, the following would be the tax status of some of the activities in respect which disputes have arisen, S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the powers conferred by Section 11C of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994, the Central Government vide Notification No. 45/2010-S.T., dated 20-7-2010 has directed that the servicetax payable on transmission and distribution of electricity provided by the service provider, which has not been levied, shall not be required to be paid in respect of the taxable service under the category of Erection, Commissioning or Installation. We find that the issue of eligibility of Notification No. 45/2010-S.T. in identical situation is no longer res integra and has been decided in favour of service providers such as the respondent, in a number of cases. The very same Notification was considered by the Bench of the Tribunal in the case of Kedar Constructions [2015 (37) S.T.R. 631] wherein the Bench has considered the activity of the appellant therein of construction of sub-station and also for maintenance of sub-station. The Bench dealing with the issue as to whether the servicetax liability under commercial and industrial construction services would be exempted under Notification No. 45/2010 or otherwise in Paragraph No. 5 6, held as under : 5. We notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST, Hyderabad-II(Final Order No. A/30489/2016, dated 23-5-2016). The relevant portion of the order is reproduced below :- The appellant is registered with the Service Tax Department. On verification of records it emerged that the appellant had entered into contract agreements with Power Distribution/Transmission Companies which involved supply of material, erection and installation of sub-stations, related lines, installation of transformers and other electrical equipments, etc. They also provided their land under lease agreement to a business organisation and received payment to that effect. The department entertained the view that the appellant has provided taxable services under the category of Erection Commissioning or Installation Services (ECIS) and Renting of Immovable Property Services, however, have neither disclosed these facts to the Department nor discharged appropriate service tax liability thereon. 2. In adjudication proceedings, service tax demand of Rs. 60,68,455/- was confirmed on services rendered under the category of ECI Services. Demand of Rs. 4,91,145/- was confirmed on services rendered under the category of Renting of Immovable Property. Hence this appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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