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2014 (7) TMI 369 - CESTAT NEW DELHIDemand of service tax - Business Auxiliary service - Fabrication of storage tanks - Held that:- As regards the service tax demand based on the allegation that the respondent have provided Business Auxiliary Service, we find that the activity which has been treated as Business Auxiliary Service, as described in the grounds of appeal, is fabrication of steel storage tanks, dozers, settlers, steel structures, platforms, railing, foundation frames etc. and their erection and installation in the factory. The Department’s plea is that these steel items after being erected and installed become embedded to earth and become non-excisable goods and hence the activity of the respondent would be Business Auxiliary Service. The ground of appeal does not mention as to which clause of the definition of Business Auxiliary Service, as given in Section 65 (19) of the Finance Act, 1994, covers this activity. Probably the department wants to cover this activity under ‘Production or processing of goods for or on behalf of a client, which does not amount to manufacture’. But fabrication of steel storage tanks and steel structures would amount to manufacture and their erection and installation would certainly not be covered by Business Auxiliary Service. As regards the repair and maintenance service - during the period of dispute, this service was taxable when provided in terms of some contract or agreement and according to Commissioner (Appeals)s findings, there is no evidence to show that such repair and maintenance activity was conducted in terms of some contract or agreement - Decided against Revenue.
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