TMI Blog2018 (11) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... s not excisable - demand set aside. Demand of service tax - erection and commissioning services or not - appellant has executed the work along with material - Held that:- The appellant has executed the work along with material and the same has been admitted by the Revenue. In these circumstances, the activity merits classification made work under the category of “works contract service” - demand under the category of erection and commissioning is not sustainable - The appellant has not recovered any service tax from their client, accordingly no service tax has been retained by the appellant, therefore, is not payable by the appellant to the Department. Appeal allowed - decided in favor of appellant. - APPEAL NO. E/55745/2014-EX[DB] - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that as the appellant is carrying out the job work of fabrication storage tanks, therefore, the appellant is liable to pay service tax under the category of erection and commissioning services and the appellant has not paid service tax there on, therefore, the appellant has evaded the service tax ₹ 25,85,406/-. In these set of facts, a show cause notice was issued to the appellant to propose demand of Central Excise duty as well as service tax on their activity along with interest and to impose penalties. The adjudicating authority adjudicated the matter and held that the appellant has not manufactured large storage tanks in the factory premises in their factory, therefore, as per the CBEC Circular No. 58/1/200-CX dated 15.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e work along with material, therefore, in the terms of decision of the Hon ble Apex Court in the case of Larsen Toubro Ltd. reported in 2015-TIOL-187-SC-ST, the merit classification of the service is under the category of works contract service and no service tax is payable by the appellant under the category of erection and commissioning services . In this case, no demand has been proposed under works contract service , therefore, the appellant is not liable to pay service tax. Moreover, the adjudicating authority has observed that the appellant has received service tax from M/s Nestle India Ltd. but the said observation of the adjudicating authority is without any basis and the appellant has not recovered any service tax from any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Revenue. In these circumstances, the activity merits classification made work under the category of works contract service as held by the Hon ble Apex Court in the case of Larsen Toubro Ltd. reported in 2015-TIOL-187-SC-ST, whereas, in this case, the demand has been confirmed against the appellant under the category of erection and commissioning services . Therefore, we hold that the demand under the category of erection and commissioning is not sustainable. 9. We further take note of the fact that para 52 of the impugned order observed as under. 52. It is observed that as per Purchase Orders/Agreements submitted by the Noticee, they provided taxable services of erection and commissioning also and realized service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
