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2016 (1) TMI 301 - MADRAS HIGH COURT

2016 (1) TMI 301 - MADRAS HIGH COURT - 2016 (41) S.T.R. 373 (Mad.) - Erection, Commissioning or Installation Services - receipt of labour charges for installation and commissioning of GRP Pipes for various customers - period from 01.07.2003 to 31.10.2004. - Held that:- It could be seen from the amendment to Section 65(39a), introduced under Finance Act, 2005, that the definition of "erection, commissioning or installation" was extended so widely as to include (i) electrical and electronics devic .....

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he 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 respondent/assessee. 3. The respondent/assessee is a manufacturer of GRP pipes. Upon perusal of the accounts of the responde .....

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from 01.07.2003 to 31.10.2003, under the proviso to Section 73(1) of the Finance Act, 1994. The assessee gave a reply. 4. Thereafter, an order-in-original, bearing No.15/2006 was passed by the Additional Commissioner of Central Excise on 20.11.2006, confirming the demand. Instead of filing a regular appeal, the respondent/assessee filed a writ petition in W.P.(MD)No.11427 of 2006. Though the Department raised the question of maintainability on the ground of availability of an alternative remedy, .....

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nding 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 allowe .....

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contention. 8. On merits, the stand taken by the respondent/assessee before the Additional Commissioner was that they were engaged only in the business of laying down pipelines and that therefore the same would not come within the purview of the expression "plant, machinery or equipment" so as to attract the provisions of Section 65(29) of the Finance Act, 2003. In order to understand the reach of the said contention, it is necessary to look into the developments that took place from 2 .....

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ined "commissioning or installation" to mean" any service provided by a commissioning and installation agency in relation to commissioning or installation of 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 an .....

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ipment; or (ii) installation of - (a) electrical and electronic devices, including wirings or fittings therefore; or (b) plumbing drain laying or other installations for transport of fluids; or (c) heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work; or (d) thermal insulation, sound insulation, fireproofing or water proofing; or (e) lift and escalator, fire escape staircases or travelators; or (f) such other similar services." 13. A careful l .....

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lant, machinery or equipment. 14. It could be seen from the amendment to Section 65(39a), introduced under Finance Act, 2005, that the definition of "erection, commissioning or installation" was extended so widely as to include (i) electrical and electronics devices, (ii)plumbing, (iii)heating, ventilation or air-conditioning, (iv) thermal insulation, (v) lift and escalator, and (vi) such other similar services. 15. Therefore, it is clear that before the amendment to Section 65(39a) un .....

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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 vs. Commissioner - {2008 (12) S.T.R. 363} that pipes or pipelines would not come under the category of "plant, machinery or equipment". This decision of the Tribunal in Indian Hume Pipes Co. ltd. was affirmed by a Division Bench of this Court, to which one of us (VRSJ) was a party, in the Commissioner of Central Excise v. Indian Hume P .....

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