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2018 (7) TMI 1791 - AT - Service TaxErection, commissioning and installation service or manufacture? - job of fabrication and erection of various steel structurals at site on and for behalf of their client - main argument of the appellant is that they are basically engaged in the manufacturing activities for the main contractor and as such, their activity cannot be held to be a taxable service - Held that:- The Tribunal on similar issue, in the case of Neo Structo Construction Ltd. [2010 (3) TMI 252 - CESTAT, AHMEDABAD], concluded that such as activity would amount to manufacture and not rendering of any service at this stage - As the said decision was not before the Commissioner at the time of adjudication, it is fit to set aside the impugned order and remand the matter for fresh decision in the light of the law declared in the above referred decision of the Tribunal. Revenue neutrality - Held that:- As the main contractor has discharged the service tax liability on the gross value of the contract given to him and the present appellant is only a sub-contractor, the entire exercise would be revenue neutral - as the matter is remanded, the said fact would also be verified by the Commissioner. Time limitation - Held that:- The appellant being an illiterate person, and as such non-maintenance of records, does not confer any malafide intention upon them so as to show that the appellant were not maintaining the records with a malafide intention not to pay service tax. In the absence of any positive activity and referring to such malafide on the part of the assessee, invocation of longer period is prima facie not justified. Appeal allowed by way of remand.
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