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2018 (8) TMI 736 - AT - Service TaxCommercial or Industrial Construction Service - activity of laying “underground optical fiber cables” for telecom companies like Reliance Communication, Vodafone Essar, BSNL and IDEA Cellular - Circular No 123 / 5/ 2010-TRU dated 24th May 2010 - Held that:- The activities undertaken by the respondent to be akin to those mentioned at Sl No 2 & 3 in the table in the said circular. In respect of the said Sl No 2 & 3 it has been clarified that “ Not a taxable service under any clause of sub-section (105) of section 65 of the Finance Act, 1994”. Since it has been clarified by the Board that these services do not fall in the category of any taxable service defined by subsection 105 of Section 65 to the Finance Act, 1994, Commissioner (Appeal) has held accordingly. Revenue is not challenging the reliance placed by the Commissioner (Appeal) on the said circular, but it is challenging the order of Commissioner (Appeal) on the ground that the same has traveled beyond the scope of show cause notice as the issue was in respect of classification of services and admissibility of abatement under N/N. 1/ 2006-ST. - If some activity has been clarified to be not taxable, then revenue cannot take a stand that activity would fall under any taxable category, because of the reason that show cause notice raised dispute of classification. Revenue has in their appeal not even challenged the applicability of the said circular in the present case. It cannot be agreed with the findings of the adjudicating authority that the “activity of laying optical fiber cable” is different from the “activity of laying electric cable”. Appeal dismissed - decided against Revenue.
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