TMI Blog2018 (10) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... is demand is also held to have rightly been confirmed - However, shifting of overhead cables/ wires or along side roads for any reason as widening/renovation of the roads is specifically not taxable as per entry No.1 of the said Circular. Benefit of Composition Scheme and cum-tax benefit - Held that:- The work orders are perused. It becomes clear that these are not the work orders for the services simplicitor or for sale of goods simplicitor but involves both the elements in such a manner that the contracts are indivisible - the contracts are opined to fall under the category of works contract services. It has also been observed that the introduction of work contract service came w.e.f. 1st June, 2007. Even the adjudicating authority has acknowledged the activity of the appellant to be covered under para (a) & (e) of sub clause (ii) of the definition of works contract service. But despite the said findings, the Commissioner is opined to have committed an error while holding that with the introduction of work contract service classification of certain services could undergo a change and merely because certain services got covered under works contract service, it does not necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation. The confirmed demand can be confined only for the year 2009-10. The major drop of the demand otherwise has not challenged by the Department. The order with respect to the demand for the year 2009-10 as mentioned in chart in Order-in-Original except for the demand of ₹ 2,66,303/- for Railway, Ajmere is hereby upheld - Rest of the demand has though taxable but is hereby set aside being barred by time - Appellant is held to be entitled for the benefit of Composition Scheme but is observed to have not opted for it. Appeal allowed in part. - Service Tax Appeal No. ST/57166/2013-ST [DB] - Final Order No. 53056/2018 - Dated:- 3-10-2018 - Mr. C.L. Mahar, Member (Technical) And Mrs. Rachna Gupta, Member (Judicial) For the Appellant : Mr.Bipin Garg, Advocate, Ms. Rinki Arora, Advocate For the Respondent : Mr. Vivek Pandey, D.R. ORDER PER: RACHNA GUPTA The appellants are holder of Service Tax Registration for works contract services. On an investigation gathered by DGCEI, the appellants were observed to have been engaged in providing errection, commissioning and installation services to Jaipur Vidhyuth Vitharan Nigam Limited (JVV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during that time many private companies were entering distribution and a clear policy of tax liability was required. The ld. D.R. has impressed upon the chart prepared by the original adjudicating authority in the order under challenge impressing upon the hard work, as has been put by the said adjudicating authority. Denying any possibility of error after such meticulation, ld. D.R. has justified the order. It is in addition, submitted that the work orders of the appellant were not merely for JVVNL the Public Utility Sector, but were also for other private entities. Seen from this angle also, the demand for certain work orders has rightly been confirmed and the major demand of show cause notice has accordingly been dropped. Finally impressing upon that the work orders of the appellant are not the turn-key contracts but are on piecemeal basis as is apparent from the fact that few of the contracts were of supply of material and rest of them were errection, commissioning and installation. It is only the latter category of contracts for which the demand has rightly been confirmed. The appeal is accordingly prayed to be dismissed. 5. After hearing both the parties and perusing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices , in brief, cover construction of and the completion, finishing, repair, alteration, renovation, restoration or similar activities pertaining to buildings, civil structures, pipelines or conduits. Therefore, only such electrical works that are parts of (or which result in emergence of a fixture of) buildings, civil structures, pipelines or conduits, are covered under the definition of this taxable service. Further, such activities undertaken in respect of roads, railways, transport terminals, bridges, tunnels and dams are outside the scope of levy of service tax under this taxable service. (ii) Under Erection, commissioning or installation services , the activities relevant to the instant issue are (a) the erection, commissioning and installation of plant, machinery, equipment or structures; and (b) the installation of electrical and electronic devices, including wiring or fitting there for. Thus, if an activity does not result in emergence of an erected, installed and commissioned plant, machinery, equipment or structure or does not result in installation of an electrical or electronic device (i.e. a machine or equipment that uses electricity to perform some other fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laying of electric cables beyond the distribution point of residential or commercial localities/complexes. Taxable service, namely commercial or industrial construction or construction of complex service [section 65(105) (zzq)/(zzzh)], as the case may be. 7. Installation of street lights, traffic lights flood lights, or other electrical and electronic appliances/devices or providing electric connections to them Taxable service, namely Erection, commissioning or installation services [section 65 (105) (zzd)]. 8. Railway electrification, electrification along the railway track Not a taxable service under any clause of sub-section (105) of section 65 of the Finance Act, 1994 8. Applying the Circular to the services still confirmed by the adjudicating authority below, we observe that the providing and fixing of streetlights is taxable. Therefore, the demand for the said category is held to have rightly been confirmed. Electrification is covered under clause 7 of the above Circular as taxable work. Therefore, this demand is also held to have rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t service classification of certain services could undergo a change and merely because certain services got covered under works contract service, it does not necessarily mean that the same service was not classifiable under any other pre-existing taxable category i.e. errection, commissioning or installation services. No doubt, the decision of Hon ble Apex Court in the case of Commissioner of Central Excise Customs, Kerala Vs. Larsen Toubro Ltd. 2015 (39) S.T.R. 913 (S.C.) was not in existence at the time of order under challenge, but the law as settled therein holds good today as follows:- In our opinion the term works contract in Article 366(29-A) (b) is amply wide and cannot be confined to a particular understanding of the term or to a particular form. The term encompasses a wide range and many varieties of contract Parliament had such wide meaning of works contract in its view at the time of the forty sixth amendment. The object of insertion of clause (29-A) in Article 366 was to enlarge the scope of the expression tax on sale or purchase of goods and overcome Gannon Dunkerley (1) [State of Madras vs. Gannon Dunkerley and Co. (Madras) Ltd., AIR 1958 SC 560: 1959 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This Tribunal in a previous case C.C.E. Vs. JS Gupta Sons 2015 (318) E.L.T. 63 has appreciated a difference between substantive and the procedural lapse in following words: There are condition and conditions, some may be substantive mandatory based on considerations of policy, and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve. A distinction between the provisions of statute which are of substantive character and were built in with certain specific objectives or policy on the one hand, and those which are merely procedural and technical in their nature on the other, must be kept clearly distinguished. In fact, it is now a trite law that the procedural infraction of notifications/circulars etc. are to be condoned if exports have really taken place and the law is settled now that substantive benefit cannot be denied for procedural lapses. Procedure has been prescribed to facilitate verification of substantive requirements. The core aspect or fundamental requirement for debate is its manufacture and subsequent export. As long ..... X X X X Extracts X X X X X X X X Extracts X X X X
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