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TMI Blog2018 (9) TMI 2086X X X X Extracts X X X X X X X X Extracts X X X X ..... e same is not a taxable activity under the head "Commercial and Industrial Construction Service". 2. The details of the appeals and the impugned order is as follows: S. No. Appeal No. OIO No. SCN dated Period 1 58718/2013 4041/GB/2013 dt. 18.03.2013 19.04.2011 2005 to 2010 21.04.2011 2005 to 2009 2 59687/2013 105/GB/2013 dated 16.05.2013 20.10.2011 2010-11 3 59685/2013 106/GB/2013 dated 16.05.2013 21.12.2012 2011-12 3. A perusal of the impugned order in original shows that in the order proposed demand on other issues are also dropped, but the same are not challenged in the present appeal, as there is no ground in the appeal memo challenging the said issues. 4. The facts of the present case are that respondent is a company engaged in execution of various projects for construction of Hydro Electric Project and Educational Institutes. The respondent did not discharge service tax on said construction projects on the ground that construction of hydro electric project is in respect of 'dam or tunnel' and thus, excluded from the definition of Commercial or Industrial Construction Service. Further, construction of educational institutes is not used for commercial o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dikes) are used to manage or prevent water flow into specific land regions. Hydropower and pumped-storage hydroelectricity are often used in conjunction with dams to generate electricity. A dam can also be used to collect water or for storage of water which can be evenly distributed between locations." 7. Further, the learned Commissioner while dropping the demand with regard to construction of the hydro-electric project have vivisected the demand into sale of hydro mechanical goods & electro mechanical goods and civil work relating to 'dams & tunnels', services rendered before 01.06.2007 (when works contract was introduced), thus, dropping the demand for the prior period. Further, the adjudicating authority erred in reclassifying the classification from 'commercial or industrial construction service' to 'works contract service'. So far the issue of demand on construction of building for educational institution is concerned, the learned Authorised Representative submits that the demand has been dropped on the ground of service rendered to organisation not for the purpose of profit, but to a organisation which was not for commercial in nature. In the facts of this case it is not di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It will also be noticed that no attempt to remove the non-service elements from the composite works contracts has been made by any of the aforesaid Sections by deducting from the gross value of the works contract the value of property in goods transferred in the execution of a works contract." 11. In view of the law laid down by the Apex court, the service in dispute which are composite in nature, are correctly classified under 'works contract service'. Thus, Commissioner has correctly dropped the demand for the period prior to 01.06.2007 as the works contract were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pipeline or conduit; or (c) completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or (d) repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit, which is- (i) used, or to be used, primarily for; or (ii) occupied, or to be occupied, primarily with; or (iii) engaged, or to be engaged, primarily in commerce or industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams; (emphasis supplied) 14. A perusal of the dentition shows that services in respect of construction of dams and tunnels are excluded from the definition of service. We find that larger Bench of Tribunal in the case of Lanco Infratech Ltd., vs. CCE, Hyderabad -2015 (38) STR 709 (Tri. LB) has held that construction of canals, laying of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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