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2009 (8) TMI 301

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..... ner 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 (Rupees Fifty lakhs only) under Section 35F of the Act (as applicable to service tax appeals) within a period of four weeks and report compliance on 6-10-09. In the event of due compliance, there shall be waiver of pre-deposit in respect of the penalty and the balance amount of service tax. - ST/62/2009 - S/367/2009-WZB/C-II/CSTB - Dated:- 27-8-2009 - S/Shri P.G. Chacko, Member (J) and A. .....

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..... as 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 adjudicating authority upheld the proposals made in the show-cause notice. It held that the activity of lowering, laying, jointing and testing GRP pipes in the premises of GIDC were squarely covered by the definition of Commercial or Industrial Construction Service given under Section 65(25b) of the Finance Act, 1994. Accordingly, by invoking the extended period of limitation on the .....

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..... 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 of the Gvernment of Gujarat playing a major role in providing infrastructure etc. It is stated that, as per Section 37 of the Gujarat Industrial Development Act, 1962, GIDC is empowered to laydown, maintain, repair pipe/pipelines, conduits for the purpose of constructing any sewers or drains necessary for carrying any waste liquids of an industrial process through the said area. The .....

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..... e 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 consideration was also construction of pipeline. It was held that the water supply project for which the pipelines were laid was a civic amenity provided by State in public interest and not an activity of commerce or industry. This decision of the Tribunal cannot be applied to the facts of the present case where we have already found industrial character of the purpose for which the pipeline wa .....

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..... ans 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 disclosed other wise to the department. In this scenario, it is claimed that the appellants indulged in suppression of material fact thereby attracting the extended period of limitation provided under Section 73(1) of the Act. The argument of the learned Counsel is that the appellants were under the bona fide belief that the services rendered to GIDC were not taxable and, therefore .....

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..... er 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 development of infrastructure for industries. This dichotomy would dislodge the appellants claim of bona fide belief. Moreover, in the service tax returns filed by them during the material period, they did not disclose the amounts collected by them from CIDC. Today the learned Counsel has argued that the service provided to GIDC was not taxable and hence not returned in their ST-3 Retur .....

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