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TMI Blog2023 (9) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Sitaram Ishwarbhai Patel, Proprietor was recorded. From the copies of works orders, financial accounts and other documents submitted by the appellant and details of work done narrated by Shri Sitaram Ishwarbhai Patel, it appeared that appellant was engaged in providing work relating to installation of various electrical equipments /lighting systems, laying cables, etc to their various clients. The Work order received were including supply of material required for execution of the work and hence the same were in the nature of composite contract for supply of goods and services. It was alleged that the work done or services provided by appellant is classifiable as taxable service under the category of "Erection, Commissioning or Installation Services"" for the period upto 31.05.2007 and under the category 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dertaken by the appellant during the disputed period is to be classified under the Works Contract Services and under the Erection, Commissioning or Installation Services. As per the learned Commissioner for the period prior to 01.06.2007, the services rendered by the appellant are squarely covered under clause (ii)(a) of Section 65(39a) of the Finance Act 1994 and as such are appropriately classifiable under the "Erection, Commissioning or Installation Services. Accordingly, she confirmed the service tax demand of Rs. 26,117/- under "Erection, Commissioning or Installation Services." She further observed that after 01.06.2007 appellant's activity covered under Works Contract Service and confirmed the Service tax demand of Rs. 55,94,435/-. For the purpose of ascertaining 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 install ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ric wires and fitting in residential premises would not be covered in the definition of taxable service and thus not liable to tax. In the present matter it is undisputed fact that appellant has provided the services to Gujarat State Police Housing Corporation for electrification of Jail and residence of Police Officers. We further find that the as per Board Circular No. 123/5/2010-TRU, 24.05.2010 laying of electric cables is not taxable under erection, commissioning & installation services. At Para 2 - (ii), it has been clarified that under Erection, Commissioning and Installation Service, if an activity does not result in emergence of an erected, installed and commissioned plant, machinery, equipment or structure or does not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tings, laying of cables, earthing works, fitting of poles, electric wiring, etc. In the present matter revenue nowhere provided any invoices or any documents by which it can be concluded that the appellant are engaged in erection, commissioning or installation of electrical and electronic devices. Therefore we hold that the Service tax demand in the present matter is not sustainable under works contract service on appellant"s activity. 10. Without prejudice, we also find that appellant carried out laying of electrical cable, fitting of electrical poles, wiring works and also street lighting works, erection of overhead lines etc. in villages of Various Nagarpalikas, Gram Panchayatas, Taluka Panchayats 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 45/2010-S.T, Central Government had retrospectively exempted all the services rendered to the transmission and distribution of electricity provided for the period 26-2-2010 upto 21-6-2010. 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. In view of this, we find that there is no error in order dated No. A/1005/15, dated 15-4-2014. Accordingly the application for Rectification of Mistake is dismissed." Similar view 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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