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2023 (6) TMI 496 - AT - Service TaxClassification of services - Commercial or Industrial Construction Service or not - supply of Ready-mix Concrete (RMC) to their customers on the basis of Purchase Orders placed - HELD THAT:- Purchase Order dated 29.12.2008 issued by Shapoorji Pallonji and Co. Ltd., has footnote in the bottom stating “VAT extra at the rate of 4% against Form D-1, FOR at site basis. Pumping charges up to 5th floor at the rate of 85 per cum beyond Rs.25 per cum extra per floor”; Purchase Order dated 04.08.2008, issued by M/s G.S. Developers and Contractors Pvt. Limited, indicates that the prices is inclusive of pumping charges at the rate of 100 per M3. On going through the various purchase orders, the only indication that is available in the purchase orders is that the prices are inclusive of pumping charges. In some purchase orders, for example the supply order issued by Disney Farms Pvt. Limited dated 29.12.2008 indicates that the rate per cum are inclusive of service tax at the rate of 12.36%. However, there is no proof to the effect that the said service tax has been paid by the customer and collected by the appellant. However, this issue is not raised either in the show cause notice or in the OIO, which only proceed on the assumption that the appellants have rendered “Commercial or Industrial Construction Service”. The sale of RMC does not involve any service angle in spite of the fact that the appellants are pumping the RMC to the desired floor at the request of the customers. The activity of pumping RMC is incidental to the sale of RMC, on which requisite VAT has been paid, by the appellants, is incidental to the sale of RMC. It is further found that showing pumping charges separately in the work orders or invoices does not materially alter the situation - Option for installation is optional for the purchaser. For the reason that the dealer is charging installation charges, the dealer cannot be held to be a service provider. Therefore, the argument of Revenue that the activity of the appellant amounts to “Commercial or Industrial Construction Service” is incorrect. Judgment in the case of L&T [2015 (8) TMI 749 - SUPREME COURT] was rendered by the Hon’ble Supreme Court in 2015, holding that indivisible services ought to be categorized under Works Contract only after 01.06.2007. Simply because the appellants categorized the service, which in fact is held to be a no service at all, under “Business Auxiliary Service”, does not take away the right of the appellant to classify the same under “Works Contract Service”. Moreover, the Department having sought to classify the activity under “Commercial or Industrial Construction Service” cannot alter their argument to the classification rendered by the appellants after 16.06.2008. In view of the Hon’ble Apex Court judgment in the case of L&T, the appellant’s activity of sale and pumping of RMC would necessarily fall under “Works Contract Service”. However, there is no service rendered by the appellants in their business. The appeal is allowed.
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