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TMI Blog2025 (1) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax demand on exempted services - denial of Abatement under N/N.1/2006 - HELD THAT:- Construction of (a) Toilets at TNEB office (b) Construction of Security Protection wall (i) in and around LMHEP Barrage unit (ii) right side of Dam Power House, (iii) in and around of central stores and raising of compound wall of the central stores are exempt in terms of Letter F. No. B2/8/2004 TRU dt.10.09.2004 - Similarly, Laying of underground power cable at Lower Mettur Hydro Electric Projects at Chekkanur Barrage, Nerinjipettai Barrage, and Kuthiraikkalmedu Barrage are exempt from tax in terms of Board's Clarification in C. No. 123/5/2010-TRU dt. 24.05.2010 (F. No. 332/5/2010 - TRU) and Circular No. 62/11/2003 - ST - dated 21.8.2003 (F. No. B3/7/2003-TRU) - Wiring and rewiring at quarters/town quarters and LMHEP quarters at Kuthiraikkalmedu is also exempt from service tax vide Board's Circular No. 62/11/2003-S.T., dated 21-8-2003 F. No. B3/7/2003-TRU - Providing WBM and Black topping over existing path in Thokkanampatti camp area and inside barrage -II at Nerinjipettai is exempt from service tax as per Section 65(25b) of the Finance Act, 1994, in terms of Para 2(i) of Board's Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of Sri. S. Kannappan, Ld. Advocate and Smt. Anandalakshmi Ganeshram, Ld. Asst. Commissioner, appeared for the Revenue. 3.1. Ld. Advocate submitted that in the impugned order the learned Commissioner in the following paragraphs has indirectly admitted that there is no service tax liability on the appellant but confirmed the demand on the ground that the appellant produced only photo--copies of the documents which are not reliable and hence, demand proposed in the show cause notice came to be confirmed: i. Para 38 of the impugned order -- Salem Steel Plant (at pages 172--188 of the paper book) ii. Para 39 of the impugned order -- Thermax Instrumentation Ltd. (at pages 99--137) iii. Para 40 of the impugned order -- BGR Energy System Ltd. (at pages 138--162) iv. Para 41 of the impugned order -- Danieli India Ltd. -- (at pages 163--171) 3.2. In respect of the above--mentioned contracts, the Service tax was demanded on the value of Gross amount shown in TDS Certificate and TDS amount was again included while arriving at the taxable value (Page 78 of the paper book). Further, the Gross amount shown in TDS certificate was inclusive of service Tax in terms of Section 67 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Dam Power House, (iii) in and around of central stores and raising of compound wall of the central stores. (c) Laying of underground power cable at Lower Mettur Hydro Electric Projects at Chekkanur Barrage, Nerinjipettai Barrage, and Kuthiraikkalmedu Barrage. (d) Wiring and rewiring at quarters at town quarters and LMHEP quarters at Kuthiraikkalmedu. (e) Providing WBM and Black topping over existing path in Thokkanampatti camp area and inside barrage-II at Nerinjipettai. 3.4.1. The work mentioned in (a) and (b) were claimed to be not taxable in view of Board's letter F. No. B2/8/2004-TRU dated 10.9.2004. 3.4.2. The work mentioned in (c) is not taxable service in view of Board's Circular No.123/5/2010-TRU dated 24.5.2010 in F.No.332/5/2010-TRU (para 3 of the circular page 14 of synopsis dt.24.03.2023) and Circular No.62/11/2003-ST- dated 21.8.2003 in F. No. B3/7/2003 -TRU. Laying of cables under or alongside roads is also claimed not taxable service under any clause of sub section (105) of Section 65 of the Finance Act,1994 as per para 1.2 of the circular. 3.4.3. The work mentioned in (d) is not taxable service in view of Board's Circular No. 62/11/2003-S.T., dated 21-8-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-contractors went up to Larger Bench. The Department has proceeded to confirm the demand relying on certain later decisions; as the dispute was under litigation on this issue, invocation of extended period was not sustainable and as a sequel, imposition of penalty also unsustainable. Even for other issues extended period not invokable inasmuch as the entire demand made in the order are on technical issue of interpretation of Notifications, Circulars and Statutory provisions and hence, the extended period was not invokable. Reliance was placed on following decisions. (i) M/s G R T Regency VS The Assistant Commissioner of Central Excise. [Order of Hon'ble High Court, Madurai Bench in W.P.(MD) No.14084 of 2017 and W.M.P (MD) No.11015 of 2017 dt. 11.10.2022]; (ii) Pramukh Earth Movers Vs Commissioner of Central Excise and Service Tax, [Final Order No.11699/2023 dt. 17.08.2023]; (iii) M/s. P.S. Construction VS Commissioner of Central Excise Panchkula, [Final Order No.30330/2024 dt. 25.06.2024]; (iv) M/s. Vinoth Shipping Services Vs Commr of C.EC.& S.T; Tirunelveli, 2021(55) GSTL 313(tri. Chennai dt.25.8.2021. 3.8. It was also pleaded that though the appellant paid a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad Ward--3 which is admitted in para 45 of the impugned order. Construction of Storm water drain and small culvert is exempted in terms of Board's Clarification F. No. B2/8/2004 TRU dt.10.09.2004. Relevant para reads thus: 13.2 The leviability of service tax would depend primarily upon whether the building or civil structure is 'used, or to be used' for commerce or industry. The information about this has to be gathered from the approved plan of the building or civil construction. Such constructions which are for the use of organizations or institutions being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for the purposes of profit are not taxable, being non-commercial in nature. Generally, government buildings or civil constructions are used for residential, office purposes or for providing civic amenities. Thus, normally government constructions would not be taxable. 6. It is not disputed by the Revenue that the Work Order ROC No.4568/2004/E1 dt.10.02.2006 is for Construction of Shopping Complex in Ward --D Block--6TSNo.71/1 under IDSMT Scheme. The only dispute on this contract is denial of Abatement under Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced below. 2(i) "Commercial or industrial construction services', in brief, cover construction of and the completion, finishing, repair, alteration, renovation, restoration or similar activities pertaining to buildings, civil structures, pipelines or conduits. Therefore, only such electrical works that are parts of (or which result in emergence of a fixture of) buildings, civil structures, pipelines or conduits, are covered under the definition of this taxable service. Further, such activities undertaken in respect of roads, railways, transport terminals, bridges, tunnels and dams are outside the scope of levy of service tax under this taxable service. Wiring and rewiring at quarters/town quarters and LMHEP quarters at Kuthiraikkalmedu is also exempt from service tax vide Board's Circular No. 62/11/2003-S.T., dated 21-8-2003 F. No. B3/7/2003-TRU. 11. Also, the Hon'ble High Court in Commissioner of Central Excise, Commissionerate Chandigarh vs Rajee Electrical Works reported in 2010(5) TMI 162. held that- "C.B.E. & C. Circular dated 21--8--2003 clarifying electrical wiring in residential premises not covered indicating non--taxability of incidental services -- Laying pipe i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate specified in Section 66 in the manner provided for. The manner has been provided for in the Cenvat Credit Rules, 2004. "Input Service" has been defined to mean, any service used by a provider of output service for providing an output service. "Output Service" has been defined to mean any service provided by a provider of service located in the taxable territory. Rule 3 stipulates that a provider of output service shall be allowed Cenvat credit of the Service Tax leviable under Section 66, 66A and 67B of the Act. Thus, in the scheme of Service Tax, the concept of Cenvat credit enables every service provider in a supply chain to take input credit of the tax paid by him which can be utilized for the purpose of discharge of taxes on his output service. The conditions for allowing Cenvat credit have been provided for in Rule 4. The mechanism under the Cenvat Credit Rules also ensures that there is no scope for double taxation'. 14. In view of the Larger Bench's decision, we uphold the liability and the demand thereon. However, we find that on this issue, there are a number of decisions during the material time in favour of assesses and the issue was laid to rest, finally, by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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