TMI Blog2023 (9) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in the present matter is not sustainable under works contract service on appellant's activity. The Tribunal in the case of COMMISSIONER OF CE CUSTOMS, NASHIK VERSUS S.Z. DHANWATE ENGG. WORKS [ 2016 (1) TMI 676 - CESTAT MUMBAI] , where it was held that The words used in the Notification are for the services relating to transmission and distribution of electricity and undisputed facts are that NTPS Nashik are engaged in power generation and supply of electricity . The supply of electricity cannot take place except by way of transmission and distribution. Time Limitation - HELD THAT:- In the facts of the present case that firstly the issue involved is of pure interpretation of legal provisions and classification of services therefore, it cannot be said that the Appellant had any mala fide intentions and have suppressed any fact with intention to evade payment of service tax. It is also on record that the Appellant have represented the matter before department during the investigation of case. This clearly shows that there is no suppression or willful misstatement on the part of the Appellant. The Appellant in the present matter has also provided all the details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of Works Contract Service for the period 01.06.2007 onwards and not under the Maintenance or Repair Service as classified by the appellant. Accordingly, a detail Show Cause Notice 19.10.2012 was issued proposing to service tax demand under works contract services and Erection Commissioning or Installation Service along with interest and also for imposing penalty. After due process of law, the adjudicating authority vide impugned order confirmed the service tax demand that has been raised in the Show Cause Notice. The adjudicating authority also imposed penalty in regard to the demands confirmed. Aggrieved by the impugned order, the appellant is now before this Tribunal. 3. Shri Bishan Shah learned Chartered Accountant appeared and argued for the appellant. He submits that the services were mainly provided to Government Departments and the work undertaken related to Government Buildings either meant for residential or non-commercial purpose apart from public utilities. 4. He submits that Appellant has provided services to Gujarat State Police Housing Corporation for electrification of Jail and Residences of police officers. The services rendered to Gujarat State Police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the taxability and classification of services it is necessary to analyze the definition of both the services. We firstly reproduce the definition of Erection, Commissioning or Installation Services defined under Section 65(39a) taxable under Section 65(105)(zzd) of the Finance Act, 1994 (the Act). Section 65 (39a) 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, equipment or structures, whether pre-fabricated or otherwise; or (ii) installation of (a) electrical and electronic devices, including wirings or fittings therefor; or (b) plumbing, drain laying or other installations for transport of fluids; or (c) heating, ventilation or air conditioning including related pipe work, duct work and sheet metal work; or (d) thermal insulation, sound insulation, fire proofing or water proofing; or (e) lift and escalator, fire escape staircases or travelators; or (f) such other similar services; From the above definition it is clear that wiring fittings works are covered under the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result in installation of an electrical or electronic device (i.e. machine or equipment that uses electricity to perform some other function) the same is outside purview of taxable service of Erection, Commission and Installation Service. Further, in Para (iii) by C.B.E. C. Circular a table has been given explaining the tax status of the activities wherein at Serial No. (1) Laying of cables under/alongside road have been stated as not a taxable activity. It is admitted fact that the appellant have done electrification works and has also laid cables under or alongside road and external wiring alongside the road, erected electrical poles both for wiring and street lights and all these work are exempted under Serial No. (2) in Para (iii) of the aforementioned C.B.E. C. Circular dated 24.05.2010. Hence, considering the submission of appellant in this matter, we find that the impugned service tax demand is not sustainable. 9. We further find that with effect from 01.06.2007 the Works Contracts Services was introduced by Section 65(105)(zzzza) of Finance Act, 1994. That entry reads as under : Taxable service means any services provided or to be provided to any person, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hayats and also for others. It appears that the said activity of appellant are relating to transmission of electricity and distribution of electricity and are exempted retrospectively as per Notification No. 45/2010-S.T., dated 20-7-2010. The said notification is reproduced for easy reference. Whereas, the Central Government is satisfied that a practice was generally prevalent regarding levy of service tax (including non-levy thereof), under Section 66 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act ), on all taxable services relating to transmission and distribution of electricity provided by a person (hereinafter called the service provider ) to any other person (hereinafter called the service receiver ), and that all such services were liable to service tax under the said Finance Act, which were not being levied according to the said practice during the period up to 26th day of February, 2010 for all taxable services relating to transmission of electricity, and the period up to 21st day of June, 2010 for all taxable services relating to distribution of electricity; Now, therefore, in exercise of the powers conferred by Section 11C o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been taken by the Tribunal in P. Ashok Kumar v. CCE ST, Guntur vide Final Order No. A/30745/2016, dated 22-8-2016 of CESTAT, Hyderabad, and Shri Ganesh Enterprises v. CC ST, Hyderabad-III in 2014 (35) S.T.R. 348 (Tri.-Bang.). By following the ratio laid down by the Tribunal supra, we are of the view that the service tax is not liable in the instant case on this ground also. 12. As regard the limitation issue argued by the appellant, we find that in the facts of the present case that firstly the issue involved is of pure interpretation of legal provisions and classification of services therefore, it cannot be said that the Appellant had any mala fide intentions and have suppressed any fact with intention to evade payment of service tax. It is also on record that the Appellant have represented the matter before department during the investigation of case. This clearly shows that there is no suppression or willful misstatement on the part of the Appellant. The Appellant in the present matter has also provided all the details/documents/records related to the disputed activity before department. In this circumstances charge of suppression or willful misstatement do not surviv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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