TMI Blog2018 (11) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... already deposited the service tax under the category of commercial or industrial construction service, there is no lacuna or short payment of the service tax in this regard. Extended period of limitation - Held that:- The department has already been aware about the issue and therefore there is no ground for invoking the extended time proviso under Section 73 of Finance Act, 1994 and therefore the demand beyond the period of normal period is barred by limitation and hence not sustainable. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 53471 of 2014 - Final Order No. 53233/2018 - Dated:- 21-8-2018 - Shri C.L. Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Shri Bipin Garg and Ms. Rinki Arora, Advocates for the appellant. Shri Sanjay Jain, Authorized Representative (DR) for the Respondent. ORDER Per. C.L. Mahar :- The appellant/assessee is registered with the Service Tax Department under the category of service in respect of commercial or industrial construction service as well as erection commissioning and installation services. A show cause notice dated 22nd October, 2010 came to be issued to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quipment. (ii) From 16/06/2005 :- Erection, Commissioning or Installation means any service provided by a Commissioning and Installation agency in relation to (i) erection, commissioning or installation of plant, machinery or equipment or (ii) installation of :- (a) electrical and electronic devices, including wiring or fitting thereof, or (b) plumbing, drain laying or other installation for transport of fluid, or (c) heating, ventilation or air conditioning, including related pipe work, duct work and sheet metal work, or (d) thermal installation, Sound installation, fire proofing, water proofing, or (e) lift and escalator, fire escape staircases or travelators or (f) such other services . 2. It has been the contention of the learned Advocate that none of the activity undertaken by the appellant falls under the category of erection, commissioning or installation as per the definition of the same given in preceding para. The activities undertaken by the appellant namely, construction of building, construction of boundary wall, levelling of the area earmark for the installation of the petrol pump, construction of road on the driven way of the petrol pump cannot be categoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated the findings given in the order-in-original. 7. We have heard both the sides and considered the record of appeal. 8. Before coming to the basic issue whether the services provided by the appellant can be classified under the category of erection, commissioning and installation services as provided under Section 65 (94) of Finance Act, 1994. In this regard, it will be appropriate to have look at the definition of erection, commissioning and installation services provided in the Finance Act, 1994 :- During the period 10/09/2004 to 15/06/2005, Section 65 (39) (a) of the Finance Act, 1994 the defined the term Erection Commissioning and Installation as under :- 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. W.e.f. 16/06/2005, Section 65 (39) (a) of the Finance Act, 1994 was amended and the defined Erection, Commissioning or Installation to mean any service provided by a Commissioning and Installation agency in relation to, - (i) erection, commissioning or installation of plant, machinery or equipment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Since, the work contract service has come to be enacted with effect from 01/06/2007 and therefore the demand prior to 01/06/2007 is not sustainable on this very ground. For the period beyond 01/06/2007 the activity is purely classifiable as work contract service. We are also of view that the services undertaken by the appellant/assessee are by no stretch of imagination be classified under erection, commissioning and installation service and therefore we feel that the Adjudicating Authority has not examined the issue in hand properly as required and therefore the provisions of law have not been interpreted in proper perspective. 12. For the period from 01/06/2007 to 2nd October, 2008 also services provided by the appellant are more of the nature of the work contract service and we feel that since they have already deposited the service tax under the category of commercial or industrial construction service, we do not find any lacuna or short payment of the service tax in this regard. While holding the above view, we also take the shelter of this Tribunal s decision in the case of Subhash Khandelwal and Sons (supra), the relevant extract of same are reproduced below :- 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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