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2009 (8) TMI 301

..... material period. . The case of the appellant is that as GIDC is not a profit-making institution, the service rendered to them would not come within the ambit of the “Commercial or Industrial Construction Service”. In this case Tri-Mumbai-held that a blind belief is not be treated as bona fide belief. In this connection, support is claimed from the decision in Tanzeem Screenarts v. Commissioner of Central Excise, Mumbai-I, 2006 (196) E.L.T. 209 (Tri.-Mumbai). It appears, the fact that huge amounts were collected from GIDC as consideration for service which was rendered to them in the same manner as to private agencies was suppressed in the service tax returns. That the Tribunal direct the appellants to pre-deposit an amount of Rs.50.00 laths .....

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..... merous customers namely M/s. Videocon Narmada, Birla Copper, IVRCL Infrastructure, Gujarat Industrial Development Corporation (GIDC), Surat Municipal Corporation and Vizag Municipal Corporation. In respect of the aforesaid service rendered to the first three parties, the appellants paid service tax. In respect of other customers, they did not pay service tax. The show-cause notice was issued to demand this tax which was not paid by the appellants. The proposals in the notice were contested. Adjudicating the dispute, the learned Commissioner held that the service rendered by the appellants to the municipal corporations was not taxable inasmuch these customers were not commercial concerns. However, in respect of service rendered to GIDC, the .....

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..... aged, primarily in, commerce or industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams; 4. On the other hand, the Revenue would argue that the construction of pipelines, which was used or to be used primarily for industry squarely fell within the ambit of the above definition. The learned Counsel for the appellant arid the learned S.D.R. have made an endeavour to elaborate their respective points. 5. After considering their submissions, we have found a valid point for the learned S.D.R. in relation to certain pleadings contained in the memo of appeal itself. The appellants have stated that GIDC is a nodal agency .....

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..... facie, there is no distinction between Birla Copper etc. and GIDC. We, therefore, hold that, prima fade, the appellants were liable to pay service tax under the head Commercial or Industrial Construction Service in respect of this service rendered to CIDC during the period of dispute. 7. The learned Counsel has claimed support from a set of decisions in his endeavour to show that the appellants had no such liability. We have gone through these decisions and we find that the cases are distinguishable from the one under consideration In Indian Hume Pipe Co. v. Commissioner, 2008 (12) S.T.R. 363 (Tri. - Chennai), the service considered was Erection, Commissioning or Installation Service . In that case, the activity which arose for consideratio .....

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..... rned Counsel has also reiterated the appellants plea on limitation against the demand of service tax. This plea has been opposed by the S.D.R. on the strength of certain documents. The plea of limitation, of-course, is also based on documents. The set of documents relied on by the learned Counsel is the correspondence between the appellants and the department. This correspondence spans over a period from January, 2005. The documents relied on by the S.D.R. include service tax returns filed by the appellants from time to time during the period of dispute. The S.D.R. has pointed out that the taxable service of Commercial or Industrial Construction Service rendered by the appellants to GIDC during the period of dispute was neither returned nor .....

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..... ery of service tax under a different heading. The learned Counsel has harped on this aspect to show that there was confusion in the departmental mind giving room for generation of bona fide belief in the assessee s mindi. However, there is one crucial fact which cannot be ignored. The appellants were paying service tax in respect of similar activity undertaken for the benefit of other private customers during the material period. Those customers were acknowledged to be industries and hence the payment of service tax under the head Commercial or Industrial Construction Service . GIDC was not acknowledged as an industry. However, in the present appeal itself, the appellants have acknowledged GIDC to be a corporation primarily undertaking deve .....

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