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2015 (3) TMI 303 - AT - Service TaxErection, commissioning or installation service - activity of construction of border-fencing with road along Indo-Bangladesh Border - there are two categories, namely (i) the Executive Agencies; and (ii) the contractors who had carried out the work - Held that:- Revenue has vehemently argued that after insertion of the expression, structure whether pre-fabricated or otherwise , the scope and scheme of levy of service tax under the category of Erection, Commissioning or Installation Service , has undergone a total change. In other words, his argument is that, even though the word structure is also mentioned in the definition of Commercial or Industrial construction service , but when erected, would fall under the scope of Erection, Commissioning or Installation Service after 01.05.2006, the effective date from which the expression structure-pre-fabricated or otherwise has been inserted. This argument, in our opinion, at the first blush though sounds attractive, but is devoid of merit when read with the object behind insertion of the word erection to the definition of Commissioning or Installation. It would be incorrect to interpret that after addition of the expression, structure-pre-fabricated or otherwise to the existing list of objects of levy of plant, machinery or equipment, it brought significant change in the said entry so as to result an interpretation that activity of erection of structure standing alone, would be leviable to service tax. On the contrary, the purpose for which the word erection was inserted continued to be the same as was applicable to plant, machinery or equipment even after addition of the expression structure-pre-fabricated or otherwise. Validity and enforceability of circular - Circular No 80/10/204-ST dated 17.09.2004 and 123/5/2010-TRU dt.24.05.2010 - Held that:- the circulars issued by the Board explaining/clarifying the meaning of Erection, Commissioning or Installation Service, cannot be ignored, while interpreting the same and applying it to the facts and circumstances of the present case - Decision in the case of Paper Products Ltd. Vs. Commissioner of Central Excise, [1999 (8) TMI 70 - SUPREME COURT OF INDIA] followed. - The Decision precludes the right of the Department to file an appeal against the correctness of the binding nature of the Circulars. Therefore, it is clear that so far as the Department is concerned, whatever action it has to take, the same will have to be consistent with the Circular which is in force at the relevant point of time. The activity/service of erection of border fencing-structure standing alone would not be subjected to service tax under clause (39a) of Sec.65, but ought to be along with the activity of commissioning or installation, in a composite contract, and no such finding is recorded in the impugned order that other activities of commissioning or installations are involved in the present Appeals, therefore, the other alternative arguments including the issue of limitation, raised by the Appellants become academic, hence, not delved into. - Demand set aside - Decided in favor of assessee.
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