TMI Blog2012 (7) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... .e.f. 1/5/06 they were paying service tax as the gross amount received by them after availing abatement, not just on the job charges. This plea of the appellant has not been considered by the Commissioner - matter remanded to the Commissioner for denovo adjudication - 496 of 2011 - ST/A/254/12-CUS - Dated:- 7-12-2011 - Archana Wadhwa, Rakesh Kumar, JJ. For Appellant: Shri M H Patil Abhijeet, Advs. For Respondent: Shri Amresh Jain, DR Per: Rakesh Kumar: The appellant are engaged in supplying and installation of duty paid structural steel canopies to oil marketing companies on their retail outlet. The scope of their work includes site survey, designing, foundation, fabrication of steel structures, transportation, assemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this service was expanded, that their activity cannot be called commercial or industrial construction, that w.e.f. 1/5/06 they are paying service tax on 33% of the gross amount received, that when w.e.f. 10/9/04 service tax was introduced on commercial or industrial construction service under Section 65 (105) (zzq) readwith Section 65 (25b), and they had doubt as to whether their activity is taxable under this entry, the appellant at that time had addressed a letter to their client BPCL and the BPCL was of the view that their activity is not taxable as "commercial or civil construction service", that the appellant as abundant precaution applied for registration under the category of "commercial or industrial construction service" on 3/12/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis that the appellant had paid the service tax only on the labour charges while this is not so and their plea in this regard has not been considered by the Commissioner, and that the impugned order, therefore, is not correct. 5. Shri Amresh Jain, the learned Senior Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) in it. 6. We have carefully considered the submissions from both the sides and perused the records. 7. The appellant supply and construct the steel canopy i.e. sheds covering the dispensing units of the petrol pumps of the oil marketing companies. According to appellant, this activity is -"erection and installation of structures, whether pre-fabricated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (iii) engaged or to be engaged 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 devices. 10. In our view, the expression - "erection, installation or commissioning of structures whether pre-fabricated or otherwise" in the definition of 'erection, commissioning or installation service' in Section 65 (39a) would cover only the service of erecting supporting structures, steel ladders, platforms, chimneys etc. in a plant and would not caver the construction of sheds/canopies of a Commercial Commercial structure like petrol pump. The appellant's activity, in our view is activity of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h effect from 16/6/05 when erection or installation of "structures, whether pre-fabricated or otherwise" was brought within the purview of "erection, installation and commissioning" service, they started paying service tax on their activity under this heading and w.e.f. 1/6/07, they paid service tax on some contracts under "work contract service" under Section 65 (105) (zzzza) at compounded rate. 12.1 From the above conduct of the appellant, specially in view of their letters dated 3/3/05 and 14/3/05 to the Department mentioning their activity in detail, it is clear that they had disclosed their activity to the Department. The show cause notice for demand of allegedly short paid duty for the period from 10/9/04 to 31/3/08 has been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, there will be no case for imposition of penalty under Section 78 as the condition for imposing penalty under Section 78 and the conditions for invoking longer limitation period under proviso to Section 73 (1) are identical. 13. Another plea of the appellant which has a bearing on the quantum of duty demand is that during period w.e.f. 1/5/06 they were paying service tax as the gross amount received by them after availing abatement, not just on the job charges. This plea of the appellant has not been considered by the Commissioner. The matter, therefore, has to be remanded to the Commissioner for denovo adjudication as this point also. During period from 10/9/04 to 30/5/07 when the appellant's activity was taxable under Section 65 (105 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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