Custom, Excise & Service Tax Tribunal
M/S Lakshmi Constructions vs The Commissioner Of Central Excise, ... on 24 September, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: ST/Stay/149/2012 in ST/280/2012-DB Appeal(s) Involved: ST/280/2012-DB [Arising out of Order-in-Appeal No.36/2011(T)ST dt 28/10/2011 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals) Guntur] M/s Lakshmi Constructions, Appellant Versus The Commissioner of Central Excise, Tirupathi Respondent
Appearance:
Mr. B. Venugopal, Adv For the Appellant Mr. S. Teli, A.R. For the Respondent CORAM:
HON'BLE SHRI D.N.PANDA , JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY , TECHNICAL MEMBER Date of Hearing: 24/09/2013 Date of Decision: 24/09/2013 Final Order No. 26608 / 2013 Order Per : D.N.PANDA Although this matter has come in the stay list, prima facie it appears that the appeal can be disposed off. It is the submission of the learned counsel that laying of the cable does not come within the purview of commercial and industrial construction as has been defined by Section 65(105)(zzq) read with the definition of the said expression under Section 65(25b) of the Finance Act 1994. For convenience of reference, he invited our attention to pages 6 & 7 of the appeal memorandum where definition of the above expression has been reproduced as under: (25(b)[commercial or industrial construction] means
(a) Construction of a new building or a civil structure or a part thereof; or
(b) Construction of 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,
(e) 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,
(iv) commerce or industry, or work intended for commerce or industry, but does not include such service provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams;
2. Appellant emphasizes that reading of the definition no way brings out the laying of the cable to be Industrial or Commercial Construction Service. But whenever BSNL has paid service tax to the appellant that was deposited into the treasury without default. Nothing has been kept by the appellant for themselves.
3. On the aforesaid submissions, it is prayed that not only the stay application may be disposed but also the appeal disposed.
4.. Revenue supports the adjudication and submits that the appellant has collected service tax from BSNL. Therefore they have to become liable under the law for the service aforesaid.
5. Heard both sides and perused the records and gone through the statutory definition of the expression Commercial and Industrial Construction service. From the facts on record, it does not appeal to common sense that laying of cables by the appellant for BNSL shall be commercial or industrial construction service from reading of the definition reproduced above.
6. Learned counsel says that whatever service tax was collected from BSNL has been paid. It is left to Revenue to verify that aspect. But prima facie it appears that the service provided by the appellant does not come within the fold of law to appreciate incidence of taxation. Accordingly both stay application and appeal are allowed.
(Order dictated and pronounced in open court) B.S.V.MURTHY TECHNICAL MEMBER D.N.PANDA JUDICIAL MEMBER pnr 3