TMI Blog2015 (8) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Board dated 27.07.2005 in a way revised the opinion expressed in its earlier circular dated 21.08.2003. A careful perusal of definition of ECIS also reveals that sub-clause (i) is separated from sub-clause (ii) by "or". Thus, clauses (i) and (ii) represent an "either or" situation, meaning thereby that what is covered in sub-clause (i) is not covered in clause (ii) and vice versa. So as installation of air-conditioning is expressely covered under clause (ii), it cannot be covered under clause (i) and as clause (i) covers everything covered by the definition of ECIS prior to 16.06.2005. it was outside the scope thereof - when, clause (i) of ECIS definition with effect from 16.06.2005 covered everything which was covered by definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only with effect from 01.06.2007 and therefore during the said period, the service tax was not leviable under ECIS. (ii) It installed HVAC/air conditioner system, which became part of the ECIS with effect from 16.06.2005 and therefore during the relevant period, which is 01.07.2003 to 31.03.2005, the service was not covered under the scope of ECIS. 3. Ld. Departmental Representative, on the other hand, stated that (i) the service rendered was covered within the main part of the definition as it existed prior to 16.06.2005 in Section 65 (39a) ibid as the appellant did the installation and commissioning of a plant and (ii) that the service rendered under a works contract was vivisectable as has been held by the Larger Bench of the CES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x prior to 01.06.2007 if the service inherent in the works contract was a taxable service is sufficient to sustain the impugned Order-in-Appeal as far as dropping the penalty under Section 78 ibid is concerned specially when the appellant had taken the plea of non-taxability of works contracts prior to 01.06.2007 before the primary adjudicating authority, In the case of Continental Foundation Jt. Venture Vs. CCE, Chandigarh-I [2007 (216) ELT 177 (SC)], the Supreme Court has also upheld the view that when the levy of service tax was in doubt and the matter was referred to a Larger Bench shows that there was scope for entertaining doubt about view to be taken and so the extended period under Section 11A of the Central Excise Act. 1944 cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation, fire proofing or water proofing; or (e) Lift and escalator, fire escape staircases or travelators: or (f) Such other similar services;] Prior to 16.06.2005:- (39a) erection, commissioning or installation means any service provided by a commissioning and installation agency in relation to erection, commissioning or installation of plant, machinery or equipment: Ld. Departmental Representative has argued that the service rendered by the appellant-assessee would be covered under the definition of ECIS as it existed prior to 16.05-2005 in-as-much-as the service rendered was installation and commissioning of the air-conditioning plant, which is clearly covered under the said definition. He stressed that the service ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that only installation of air-conditioning is covered under clause (ii) of Section 65 (39a) and therefore commissioning of air-conditioning would be covered under the scope of Section 65 (39a)(i) (and by implication under ECIS as it existed prior to 16.06.2005), suffice to say that clause (i) covers erection, commissioning or installation of plant, machinery, equipment or structures and therefore if commissioning of air-conditioning is covered under the scope of the said clause (i), then even the installation thereof would be covered under the same clause, because it is not possible to harmoniously interpret the clauses (i) and (ii) of Section 65 (39a) to conclude that while installation of air-conditioning would be covered under clause (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion expressed in its earlier circular dated 21.08.2003. A careful perusal of definition of ECIS also reveals that sub-clause (i) is separated from sub-clause (ii) by or . Thus, clauses (i) and (ii) represent an either or situation, meaning thereby that what is covered in sub-clause (i) is not covered in clause (ii) and vice versa. So as installation of air-conditioning is expressely covered under clause (ii), it cannot be covered under clause (i) and as clause (i) covers everything covered by the definition of ECIS prior to 16.06.2005. it was outside the scope thereof (i.e.. ECIS prior to 16.06.2005). 8. In the case of Glaxo Smithkline Pharmaceuticals Ltd. Vs. CCE, Mumbai-IV [2006 (3) STR 711 (Tri. - Mumb.)]. CESTAT held as under;- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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