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TMI Blog2024 (8) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of dams to be eligible for the exemption contained in Notification No.17/2005 dated 07.06.2005. In view of the decision of the Tribunal in the case of Continental Constructions Ltd. [ 2018 (2) TMI 1256 - CESTAT NEW DELHI] , it is found that the issue is no longer res-integra and is decided in favour of the respondents. We find that the Hydro Electric projects have no separate existence from the dams. The construction of a Hydro Electric project, pre-supposes the existence or construction thereof of a dam. The Hydro Electric projects are always associated with the dam and therefore, such dams are often referred to as multi-purpose hydel projects. Thus, there is no merit in the grounds of appeal of the Department. Time Limitation - HELD THAT:- It is found that other than making casual allegation that the appellants intended to avoid proper discharge of service tax and suppressed the facts and did not file ST-3 Returns, Revenue has not highlighted any specific commission or omission on the part of the respondents so as to necessitate the invocation of extended period. Therefore, relying on the cases cited by the respondent and the other cases, it is opined that the respondent h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17/2005 dated 07.06.2005 and therefore, the appellants are not liable to pay the demand of service tax. Committee of Chief Commissioners has reviewed the impugned order passed by the Commissioner and directed the Commissioner to file an appeal before this Bench. Hence, this appeal. 2. Revenue's appeal is on the following grounds: The Adjudicating Authority erred in arriving at the conclusion that the services rendered by the respondents are covered under Notification No.17/2005-ST dated 07.06.2005 as it does not provide any exemption to services rendered in relation to construction of a power house. The Adjudicating Authority erred in confirming that the services of site formation and clearance, excavation and earthmoving and demolition, rendered by the respondents were in respect of the dam; however, as per the contract entered into by the respondents with M/s Patel Gammon Engineering J V Ltd., the respondents were required to provide service of surface excavation of power house at Rampur Hydro Electric Project and hiring of excavators, ROC and tippers at Rampur Hydro Electric Project; nowhere in the contract, it is mentioned that the services are in relation of construction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under proviso to Section 73(1) are existing in the impugned case; no evidence to the effect that the appellant has mis-declared or suppressed any material fact with intent to evade payment of duty has been adduced; moreover, during the relevant time, there was no clarity on the issues related to service tax and most of the issues came to be settled at a later date by the judgments of Tribunals, High Courts and Supreme Court; the respondents had a bona fide belief that they are not required to pay service tax; extended period cannot be invoked for entertaining a different opinion. He further submits that learned Commissioner had decided the issue in favour of the respondents; however, the issue is squarely in the favour of the respondents on limitation too though the Adjudicating Authority has not discussed the issue of limitation. He relies on the following cases: Pushpam Pharmaceuticals Company 1995 (78) ELT 401 (SC) Anand Nishikawa Co. Ltd. 2005 (188) ELT 149 (SC). Continental Foundation Joint Venture Holding 2007 (16) ELT 177 (SC). Bharat Hotels Ltd. 2018 (12) GSTL 368 (Delhi) Hospitech Management Consultants Pvt. Ltd. (2023) 7 Centax 134 (Tri. Del.) M/s C.P. Systems Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, farming etc. and also including in its broad sense, farming, horticulture and foresty, cheese making etc. (b ) Irrigation that supply of water to and area of land through pipes and channels sothat crops will grow. (c) Watershed development the term watershed means a line of high land where streams on one side flow into river, and streams of other side flow into a differentriver and (d) Drilling, digging, repairing, renovating or restoring of water sources or waterbodies. 20.2 I also find that the services were provided by the noticee to M/s Patel Engineering Ltd. for Parbati Hydro Electric Project-II, Barshaini (H.P.), Satluj Jal Vidyut Nigam Ltd., Rampur. The complete project consisted of construction of dam, tunnels, roads, power house, residential complexes and offices etc. The services of Site formation and clearance, excavation and earth moving and demolition in respect to dams were exempted from Service Tax under notification No. 17/2005-Service Tax dated 07.06.2005 w.e.f. 16.06.2005. As such the services of Site formation and clearance, excavation and earth moving and demolition provided by the noticee were exempted services. 7. We find that the respondents rely upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act as they fall within the exclusion clause of the definition of commercial or industrial construction service or Works Contract Service . The corrosion protection, epoxy coating, painting, polyurethane injection for grouting and blasting etc. for shaft spillways and tunnels (parts of dam) on being incorporated into the dam structure/tunnel become part of the dam/tunnel and partake the character of the dam structure/tunnel itself. The hydro-mechanical fixtures get affixed to the dam or tunnel. In fact, without these fixtures the dam or the tunnel system is not complete. Hence such works are also in the nature of dam/tunnel and fall outside the scope of 'works contract service' as well under 'commercial or industrial construction service' by way of the specific exclusion provided for dams under the Act. The SCN has tried to differentiate between a HEP and dam and tunnel. The discussions above would clearly show that Dam and Tunnel are integral part of HEP, and HEP cannot be visualised in isolation from Dam and Tunnels. The logic of SCN would lead to an absurd situation where construction services of dam and tunnel under separate contracts would not attract serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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