TMI Blog2016 (12) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench has settled that the law and held that irrigation projects/lift irrigation projects would get covered under CICS prior to January, 2007 but eligible for exemption. We also find strong force in the contention of the appellant that the issue is now covered under Hon'ble Supreme Court in the case of Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT], in the said case the Hon'ble Apex Court was considering the same issue of vivisected contract for taxability under different categories. Whether the issue that the contract entered would get covered under Erection Commissioning or Installation Services was never before the lower authorities and hence the appellant should not be allowed to raise the same before the Tribunal is also dismissed as the Bench has recorded the finding on casual perusal of contract entered into is works contract wherein the appellant has used material in all the projects. Since the issue is question of law, in our opinion it can be raised before the Tribunal. The impugned order is set aside on merits itself. Since we are allowing the appeal on merits, we are not recording any observation on the various submissions made by both sides - appeal allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, Commissioning or Installation services.The Respondent took, for the purpose of calculating the service tax,33 per cent of of the gross amount received by the Appellant as value under Section 67 of the Act. This is evident from the annexure A to the show cause notice (page 17/98). B. It is submitted that the impugned order of the Respondent holding that the activity of the Appellants is taxable under the Erection, Installation and Commissioning services is ex-facie unsustainable in view of paragraph 24 of the judgment of the Hon ble Apex Court in the case of Commissioner of Central Excise and Customs (Kerala) vs. Larsen Toubro Limited-2015 (39) S.T.R. 913 (S.C.). C. The five services referred to in paragraph 24 above are set out in paragraph 10 of the judgment, which includes erection, commissioning or installation. The relevant extract of paragraph 10 reads thus: 10. Section 64. Extent, commencement and application. (1) This Chapter extends to the whole of India except the State of Jammu and Kashmir. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. (3) It shall apply to taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sustained. H. Without prejudice and in any event, it is submitted that on the finding recorded by the Commissioner himself the activity of the Appellant will not be covered by erection installation and commissioning services in view of the following judicial precedents : (a) Indian Hume Pipe Co.Ltd. vs. Commissioner of Central Excise, Trichy reported in 2008 (12) STR 363 (Tri Chennai) as affirmed by the Hon ble Madras High Court in 2015 TIOL-2049-HC MAD ST (b) Commissioner of Central Excise, Mumbai vs. Surindra Engineering Co. Ltd. reported in 2014 (36) STR 1191 (Tri Mumbai) (c) Lalit Constructions vs. Commissioner of Central Excise, Raigad reported in 2012 (27) STR 138 (Tri Mumbai) (d) Lanco Infratech Ltd. vs. CC, CE ST, Hyderabad reported in 2015 (38) STR 709 (Tri-LB) I. The larger Bench of this Hon ble Tribunal in Lanco Infratech Ltd. v. Commissioner of Customs, Central Excise and Service Tax, Hyderabad [2015 TIOL-768-CESTAT-BANG-LB = 2015 (38)S.T.R. 709 (Tri. - Bang)] covered the issue Considered in the light of the precedents referred to herein above; the definitions of ECIS and CICS; the Board clarification dated 7-1-2010; the Dictionar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proofing, lift and escalator, fire escape staircases or elevators; or (b) Construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or (c) Construction of a new residential complex or a part thereof; or (d) Completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to (b) and (c); or (e) Turnkey projects including engineering, procurement andconstruction or commissioning (EPC) projects; L. Admittedly, the main activity undertaken by the Appellant is laying of pipeline, which is primarily not for the purpose of commerce and industry and consequently not taxable under Works Contract Services. M. Further the definition of taxable services of works contract excludes, inter alia, works contract in respect of dams. The work undertaken by the Appellants is in respect of dams. N. Without prejudice and only by way of an alternative submission, the Appellant submits that the quantification of demand is erroneous. O. Further, the invocation of extended period is patently unsustainable and demand beyond the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Apex Court was considering the same issue of vivisected contract for taxability under different categories. After considering the law, their lordships in paragraph 24 held as under:- 24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines taxable service as any service provided . All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered by him. This would unmistakably show that what is referred to in the charging provision is the taxation of service contracts simpliciter and not composite works contracts, such as are contained on the facts of the present cases. 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