9911796707
TMI Blog2009 (8) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... ustrial Construction Service" for the period 16-6-05 to 31-3-08, the learned Commissioner demanded the aforesaid amount of service tax from the appellant by invoking the extended period of limitation under Section 73(1) of the Finance Act, 94, also demanded interest thereon under Section 75 of the Act and imposed a penalty equal to service tax under Section 78 of the Act. 2. After examining the records, we note that certain facts are not in dispute. The appellants were engaged in the activity of lowering, laying, jointing and testing GRP pipes (which were manufactured by themselves) at the customers, site during the material period. They undertook such activity for the benefit of numerous customers namely M/s. Videocon Narmada, Birla Coppe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building or a civil structure or a part thereof; or (b) construction of pipeline or conduit; or (c) completion and finishing services such as glazing, plastering, painting floor and wall tiling, wall covering and wall papering wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or (d) repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit, which is - (i) used, or to be used, primarily for; or (ii) occupied, or to be occupied, primarily with; or (iii) engaged, or to be engaged, primarily in, commerce or industry, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IDC primarily for industrial purposes thereby attracting Section 65(25b) of the Finance Act, 1994. As regards similar service rendered to the Municipal Corporations, the adjudicating authority rightly concluded that the service was not taxable. The reasons are obvious. The Municipal Corporations (customers of the appellants) are neither industrial nor commercial in character. They are in the nature of governmental agencies serving the public in multifarious ways. Insofar as similar service rendered to private agencies like Birla Copper is concerned, the appellant chose to pay service tax. With regard to the industrial character and the purpose for which the pipelines were laid, jointed, tested etc. prima facie, there is no distinction betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot taxable under the head "Commercial or Industrial Construction Service". In that case, the pipelines were used for supply of water at subsidized rate to local body and at higher rates to industries. After examining certain documents on record, the Tribunal found that the Gujarat Water Supply and Sewerage Board was "primarily" engaged in executing water supply and sewage works for the benefit of the public. The expression "primarily" is significant. In the memo of the present appeal itself, it has been acknowledged that GIDC is primarily engaged in developing infrastructure etc for industries. On this sole ground, the reliance placed by the learned Counsel on the aforesaid decisions cannot be accepted. 8. The learned Counsel has also reit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Nazareth Metal v. Commissioner of Central Excise, Mumbai-II, 2006 (205) E.L.T. 998 (Tri. - Mumbai), wherein it was held that mere knowledge of the department would not curtail the period provided under the proviso to Section 11A of the Central Excise Act. After giving careful consideration to the rival submissions, we find that, prima fade, prior to June, 05, the department wanted to levy service tax on the appellants' activity under the head 'Testing Services', which proposal was resisted. Later on, the department made a revised proposal for levy of service tax under the head "Erection, Installation and Commissioning Services". This proposal was also contested. Later on, the subject show-cause notice was issued for recovery of service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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