TMI Blog2016 (1) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... e pipes that the respondent/assessee had to lay were not plant, machinery or equipment. Therefore, the learned Judge [2011 (8) TMI 698 - MADRAS HIGH COURT] was right in allowing the writ petition. - Decided against the revenue. - Writ Appeal (MD) No. 1223 of 2011 - - - Dated:- 18-12-2015 - V. Ramasubramanian And N. Kirubakaran, JJ. For the Appellant : Mr B Vijay Karthikeyan For the Respondent : Mr Joseph Prabakar JUDGMENT V. Ramasubramanian, J This appeal by the Revenue arises out of an order passed by the learned Judge, setting aside a demand for payment of Service Tax. 2. Heard Mr. B. Vijay Karthikeyan, learned Standing Counsel for the appellant Department and Mr.Joseph Prabakar, learned counsel for the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided by the statute, the writ petition ought not to have been entertained by the learned Judge. 6. The learned Standing Counsel for the Department is justified in raising such a contention. It is not in every case that this Court can entertain a writ petition challenging orders such as orders-in-original. It is only in the rarest of rare cases that this Court would entertain a writ petition allowing the assessee to bypass the alternativeremedy of appeal. 7. But, in the case on hand, the order-in-original is dated 20.11.2006. The writ petition was filed way-back in December, 2006 and it was eventually allowed by a learned Judge on 08.08.2011. The appeal filed by the Department was admitted on 21.11.2011. Thus, a total period of 9 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plant, machinery or equipment . This came into effect on 01.07.2003. 11. By Section 90 of the Finance (No.2) Act, 2004, Section 65(28) was omitted and a new section 65(39a) was inserted with effectfrom 10.09.2004. This Section 65(39a) read as follows: (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. 12. By Section 88 of the Finance Act, 2005, Section 65(39a)was amended. The amended Section 65(39a) reads as follows: (39a) 'erection, commissioning or installation' means any service provided by a commissioning andinstallation agency', in relation to, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (vi) such other similar services. 15. Therefore, it is clear that before the amendment to Section 65(39a) under Finance Act, 2005, installation of plumbing, drain laying or other installations for transport of fluids was not included within the definition of erection, commissioning or installation . This is why the learned Judge came to the conclusion that the contract that the respondent/assessee had with its customers for the purpose of laying pipelines did not come within the definition of the expression commissioning or installation as it prevailed under Section 65(28) as on 01.07.2003. We find nothing wrong in the conclusion reached by the learned Judge. 16. As a matter of fact, CESTAT held in M/s.Indian Hume Pipes Co. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
