TaxTMI 
TaxTMI 
2020 (2) TMI 110
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....ent Authority which are all Government Organizations. The appellants engaged as main contractor as well as sub-contractor. In some cases the appellants were issued Show Cause Notice demanding Service Tax under the Erection, Commissioning or Installation Service (ECIS) in respect of services provided by them to local authorities for laying of pipelines. The said demand was confirmed by the Original Adjudicating Authority an hence these appeals. 2.1 Learned Counsel argued that while demand has been made under Erection, Commissioning or Installation Service there are decisions which hold that such service cannot be classified under the category of ECIS. Learned counsel relied on the decision of tribunal in case of INDIAN HUME PIPE CO. LTD. VS COMMISSIONER OF C. EX., Trichy 2008 (12) S.T.R. 363 (Tri.-Chennai) wherein, it was held that the activity of laying of long distance pipelines would not fall under the definition of ECIS. He argued that the said decision has been upheld by Hon'ble High Court of Madras as reported in 2015 40 S.T.R. 214 ( Mad.). He also pointed out that the issue is squarely covered by the decision of larger bench in case of LANCO INFRATECH LTD. VS. CC,CE&ST, HYDE....
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....be charged for Commercial Or Industrial Construction Service category. 2.4 Learned counsel further argued that after 01.07.2012 the said services are specifically exempted by the negative list. He pointed out that Entry No. 12,13 & 25 of Notification No. 25/2012-ST dated 20.6.2012 clearly covers the activities under taken by them in the negative list. 2.5 Learned counsel further pointed out that demand has been raised under Business Auxiliary Service category also. He pointed out that the exact sub-clause of section 65 (19) of the Finance Act, 1994 has not been pointed out while raising the demand under Business Auxiliary Service. He relied on the decision of tribunal in case of SWAPNIL ASNODKAR 2018 (1) TMI 266- CESTAT MUMBAI to hold that demand under these circumstances cannot be sustained. 3. Learned Authorized Representative relied on the impugned order. 4. Learned Counsel argued that the ground relating to non-commercial nature of SMC/GWSSB was not raised before the lower authorities and has been raised for the first time in tribunal. Learned Authorized Representative argued that the appellants have contended that the activity would fall under Works Contract Service. He po....
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....hereas the Revenue has raised the demand under wrong head. On this ground the demand of service tax under Business Auxiliary Services does not sustain. As per our above discussion, the impugned order is set aside and appeal is allowed." 5.1 The next argument of the appellant is that the service provided by them is not covered under ECIS as held by tribunal in case of INDIAN HUME PIPE CO. LTD. (supra) affirmed by the Hon'ble High Court of Madras. In Para 8, 8.1 & 8.2 of the decision of tribunal in case of INDIAN HUME PIPE CO. LTD. following has been observed: "8. We have considered the rival arguments. The dispute involves the meaning of the expression and legislative intent behind scope of the levy on erection, commissioning or installation. The impugned order found that up to 16-6-95, the assessee had rendered the taxable activity of erection, commissioning or installation of a plant. The Commissioner found that "plant represented a fixed investment for carrying out certain institutional activity for business". The water supply system involving pipelines is therefore seen as a plant. The activity undertaken by IHPL is construction of pipeline by earthwork excavation, conveying....
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....ided in a building as it appears in the company of air-conditioning system, lifts, electronic devices including wiring etc. which are installed in a building. The Commissioner found that "plant represented a fixed investment for carrying out certain institutional activity for business". The ld. Consultant for the department has tried to defend the interpretation of the Commissioner of the expression plant. The Commissioner's interpretation of a plant would cover a long distance pipeline. We find it difficult to accept the above reading of the word plant in the context it is used. It is an inappropriate selection of the various meanings of this simple word. Plant in popular usage means a cluster of buildings or a building in which machinery are installed usually for manufacture of goods. Long distance pipeline is not even remotely associated with this common understanding of the word plant. We also find that a water supply project is an infrastructure facility and a civic amenity the State provides in public interest and not an activity of commerce or industry. The impugned order also did not hold it to come under a service of commercial or industrial nature as submitted by the ld. ....
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.... of Larger Bench as well as Hon'ble High Court of Madras cited above we respectfully hold that the activities under taken by the appellant cannot be classified under ECIS. 5.4. The other arguments of revenue regarding classification of services under Works Contract Service or Commercial or Industrial Construction Service become irrelevant as no demand under the said head has been raised by revenue. No charge for classification of the serviced provided by the appellant under the head of Works Contract or Commercial or Industrial Construction Service has been made against the appellant. In these circumstances we are unable to uphold the demand raised against the appellant in respect of activities relating to laying of pipelines for Surat Municipal Corporation, Gujarat Water Supply and Sewerage Board ( GWSSB), Canal Division, NHAI And M/s. Surat Urban Development Authority. 5.5. The revenue has also argued that in some cases the appellant have acted as sub-contractor and not as main contractor. We find that the said argument is of no use as the demand has been raised solely under the category of ECIS and in view of the decision of Hon'ble High Court of Madras and the Large Bench cit....