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2016 (11) TMI 707 - MADRAS HIGH COURT

2016 (11) TMI 707 - MADRAS HIGH COURT - TMI - Levy of tax - Erection, Installation and Commissioning of Telecommunication Towers - Held that: - the activity of supply of materials, services of civil and electrical and commissioning and installation are part and parcel of and incidental to the turnkey project of design, supply, erection, commissioning and installation of telecommunication tower project undertaken by them and consequently the value of materials which were consumed/used for providi .....

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ce on account of the delay, then it is a good ground to interfere with the order passed by the lower authority. However, in this case, this Court is not inclined to test the correctness of the order on the ground of delay, since this Court is satisfied that the impugned order is not sustainable, for the other reason, namely by relying upon an order of the Tribunal, which has been set aside, it is sufficient to hold that the impugned order is unsustainable and the matter requires fresh considerat .....

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he name was changed as Siva Projects Engineering and Enterprises Limited. The petitioner is engaged in Erection, Installation and Commissioning of Telecommunication Towers during the period from April 2009 to September 2011. The petitioner obtained Service Tax Registration from the Service Tax Commissionerate, Chennai for the following services: (i) Business Auxiliary Service, (ii) Business Support Service, (iii) Management Consultant Service and (iv) Works Contract Service. The respondent issue .....

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the impugned order by way of an appeal to the CESTAT, the petitioner has challenged the impugned order by way of this writ petition primarily on two grounds. Firstly, by contending that the respondent has relied on the decision of the Tribunal in the case of Suzlon Infrastructure vs. Commissioner of Central Excise, Pune, reported in (2012) 27 STR 243, which has been overruled by the High Court of Bombay in the case of Synefra Engineering and Construction Limited vs. Commissioner of Central Exci .....

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n that ground, the impugned order is liable to be set aside. In this regard, a Circular issued by the Central Board of Excise and Customs (CBEC) IN Circular No.732/48/2003-CX dated 5.8.2003 has been relied on, wherein the Board has taken a serious view of the matter and directed that in all cases of adjudication, where personal hearing has been concluded, it is necessary to communicate the decision immediately or within a reasonable time of five days and where for certain reasons the time limit .....

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ture (supra) has been set aside by the High Court of Bombay, the matter has been remanded to the Department for fresh consideration. With regard to delay in passing the order, the learned counsel placed reliance on a decision of this Court in the case of Academy of Maritime Education and Training Trust vs. the Commissioner of Service Tax, Chennai in W.P.No.13615 of 2014 dated 3.7.2014 and submitted that the court held that the delay by itself cannot be a ground to set aside the order and the Cou .....

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referring to the said judgment to conclude that the activity of supply of materials, services of civil and electrical and commissioning and installation are part and parcel of and incidental to the turnkey project of design, supply, erection, commissioning and installation of telecommunication tower project undertaken by them and consequently the value of materials which were consumed/used for providing the service is includible in the taxable value of service. 7. The Bombay High Court in Synerf .....

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n the earlier round of litigation, the said judgment was set aside and the matter was remanded to the CESTAT for fresh consideration. Thus, the basis of the finding rendered by the respondent by relying upon a decision of the Tribunal in Suzlon Infrastructure has been effaced by the order of the High Court. Therefore, the decision in the case of Suzlon Infrastructure, based on which the impugned order was passed, was no longer available for the respondent to rely upon, as the Bombay High Court, .....

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