Custom, Excise & Service Tax Tribunal
Shree Mahavira Buildwell Pvt Ltd vs Patna-I Commissionerate on 9 July, 2025
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH: KOLKATA
REGIONAL BENCH - COURT NO. 1
Service Tax Appeal No. 78837 of 2018
Service Tax Cross Objection No. 75529 of 2018
(Arising out of Order-in-Original No. 14/ST/Ayukta/2018 dated 26.06.2018 passed
by the Commissioner of CGST & Central Excise, Patna-I, 4th Floor, CR Buildign,
(Annexe), Bir Chand Patel Path, Patna 800001)
Commissioner of Central GST & Central Excise, : Appellant
Patna-I
4th Floor, CR Buildign, (Annexe),
Bir Chand Patel Path, Patna 800001
VERSUS
M/s. Shree Mahavira Buildwell Pvt. Ltd. : Respondent
Mahavir Enclave, G-2, Behind Prema Honda
Showroom, Exhibition Road, Patna(Bihar)
WITH
Service Tax Appeal No. 75404 of 2019
(Arising out of Order-in-Original No. 14/ST/Ayukta/2018 dated 26.06.2018 passed
by the Commissioner of CGST & Central Excise, Patna-I, 4th Floor, CR Buildign,
(Annexe), Bir Chand Patel Path, Patna 800001)
M/s. Shree Mahavira Buildwell Pvt. Ltd. : Appellant
Mahavir Enclave, G-2, Behind Prema Honda
Showroom, Exhibition Road, Patna(Bihar)
VERSUS
Commissioner of Central GST & Central Excise, : Respondent
Patna-I
4th Floor, CR Buildign, (Annexe),
Bir Chand Patel Path, Patna 800001
APPEARANCE:
Shri Aditya Dutta, Advocate for the Assessee
Shri S. K. Jha, Authorized Revenue for the Respondent
CORAM:
HON'BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL)
HON'BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL)
Page 2 of 16
Appeal Nos.:ST/78837/2018
ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB
FINAL ORDER NOs. 76883-76884 /2025
DATE OF HEARING: 07.07.2025
DATE OF PRONOUNCEMENT: 09.07.2025
Order: [PER SHRI K. ANPAZHAKAN]
Service Tax Appeal No. 75404 of 2019 was filed
by M/s. Shree Mahavira Buildwell Pvt. Ltd (herein
after referred as the Appellant) against the
confirmation of service tax demands along with
interest and penalty in the Order-in-Original No.
14/ST/Ayukta/2018 dated 26.06.2018 passed by the
Commissioner of CGST & Central Excise, Patna-I, 4th
Floor, CR Buildign, (Annexe), Bir Chand Patel Path,
Patna.
Service Tax Appeal No. 78837 of 2018 and Service
Tax Cross Objection No. 75529 of 2019, have been
filed by the Department (herein after referred as the
Revenue) against dropping of the demands in the
same Order-in-Original No. 14/ST/Ayukta/2018
dated 26.06.2018 passed by the Commissioner of
CGST & Central Excise, Patna-I, 4th Floor, CR
Buildign, (Annexe), Bir Chand Patel Path, Patna. As
both the appeals and the Cross objections emanate
from the same Order-in-Original, both are taken up
together for decision by a common order.
2. M/s. Mahavira Buildwell Pvt. Ltd, have been
engaged in the following business:
(i) shifting and installation of Electric Power Lines for
construction of several national highways at different
sites belonging to different National Highway
Authorities like N.H. West Division, Patna, N.H.
Division, Madhepura etc,
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Appeal Nos.:ST/78837/2018
ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB
(ii) also rendering services for installation and
commissioning DCDB Box, installation of antenna
mounts on existing towers, internal electrical works
for upgradation of tower sites, supply and installation
of MCB etc for different telephone companies namely,
Reliance Infratel Limited, Vodafone Spacetel Limited,
Bharti Infratel Limited etc,
(iii) Shifting, erection, dismantling, laying of Utilities
(Electrical Lines) for different Power distribution
companies.
2.1. The appellant was duly registered with the
service tax department under Registration No.
AAKCS9869EST001 under the category of 'Erection
Commissioning & Installation Service', 'Works Contract
Service' etc. They have been filing ST-3 Returns
regularly showing payment of service tax in respect of
jobs at sl. No. (ii) and (iii) above. They did not pay
any service tax for the jobs mentioned at Sl. No. (i)
above since the same was exempted from service tax
as per Circular No.123/5/2010-TRU dated 24th May,
2010.
2.2. While rendering service mentioned at Sl. No.
(ii) and (iii) above, the appellant was required to
supply materials like 'Service Cable 2C X 4MM-
85446090', GI Pipe 25 MM etc. along with Accessories
thereof, for installation purpose, as required under the
said Orders. The appellant availed abatement under
Works Contract Service for discharging service tax
liability under N.F. No. 1/2006-ST dated 01.03.2006
on such jobs.
3. On the basis of difference between the information
available in the Balance Sheet and Profit and Loss
Account and the information furnished by the
Page 4 of 16
Appeal Nos.:ST/78837/2018
ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB
appellant in the ST-3 returns filed by the appellant, a
SCN dated 12.01.2017 was issued by the department
demanding service tax for the Financial Years 2011-12
to 2014-15. The Notice demanded service tax
(including E Cess and SHE Cess) to the tune of Rs.
5,65,96,628/- along with interest and equal amount of
tax as penalty u/s 78 of the FA, 1994 denying of
benefit of N.F. Nos. 1/2006-ST dated 01.03.2006, N.F.
No. 25/2012-ST dated 20.06.2012, 26/2012-ST dated
20.06.2012 and 42/2012-ST dated 20.06.2012.
3.1. The said SCN was adjudicated by the
Commissioner of Central GST & Central Excise, Patna-
I vide his Order-in-Original dated 27.06.2018
wherein he has confirmed the demand of service tax
(including E Cess and SHE Cess) amounting to Rs.
2,93,50,435/- along with interest and equal amount
of penalty for FY 2011-12 to 2014-15. He also
confirmed demand of late fee of Rs. 27,200/-, interest
of Rs. 9,541/- against delayed deposit of service tax
during the period from January, 2013 to March, 2015
and also appropriated the same since already paid and
imposed penalty of Rs. 10,000/- each u/s Sections
77(c)(i), 77(c)(ii) and 77(c)(iii) respectively. He
imposed further penalty of Rs. 1,00,000/- each on
Noticee Nos. 2 and 3. In the said O/O rest of the
demand of Rs. 2,72,46,193/- [Rs. 5,65,96,628/- (-)
Rs. 2,93,50,435/-] was dropped. Hence these appeals
were filed by the appellant as well as the department.
4. The appellant submits that the activities
undertaken by them can be classified into the
following broad heads along with their taxability: -
(1) Shifting, erection, dismantling,
laying of Utilities (Electrical Lines) in
Page 5 of 16
Appeal Nos.:ST/78837/2018
ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB
National Highways for purposes like
rehabilitation/upgrading/construction of
Highways:-
The above services rendered by them were in
the nature of Works Contract Service and
involved supply of material but such services
were exempted from leviability of service tax in
view of Circular No.123/5/2010-TRU dated
24th May, 2010.
(2) Shifting, erection, dismantling,
laying of Utilities (Electrical Lines) for
different telephone companies: -
The above services were also in the nature of
Works Contract Service wherein supply of
materials were involved and some portion of
such material supplied were consumed in
course of carrying out the above activities and
value of such service rendered were inclusive
of the value of such consumed materials. They
had discharged their service tax liability on
such activities on the abated value as per N.F.
No. 01/2006-ST dated 01.03.2006 as
amended. Even though the services were also
exempted as per the clarification issued in the
Circular No.123/5/2010-TRU dated 24th May,
2010, they have paid service tax on these
services as per their understanding at that
time.
Page 6 of 16
Appeal Nos.:ST/78837/2018
ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB
(3) Shifting, erection, dismantling,
laying of Utilities (Electrical Lines) for
different Power distribution companies.
The above services were also in the nature of
Works Contract Service in as much as they
shifted and installed utilities like transformers,
circuit breakers etc which is directly related to
the principal supply of transmission and
distribution of electricity performed by Electric
Supply Circle, Saharsa of North Bihar Power
Distribution Company Limited (NBPDCL) and
South Bihar Power Distribution Company
Limited (SBPDCL). Such services were
exempted from service tax as can be seen
from the judgement of the Tribunal
Ahmedabad in the case of Shresth Leasing &
Finance Ltd. v CCE&ST, Surat-I [(2022) 1
Centax 64 (Tri-Ahmd)].
4.1. The appellant submitted that during the
material period of 2011-12 to 2014-15, they had
discharged service tax liability as mentioned below: -
2011-12 - Rs. 1277622/-
2012-13 - Rs. 3168538/-
2013-14--Rs.1513704/-
2014-15--Rs. 1374064/-
Total ------------- Rs. 73,33,928/-
4.2. The appellant submits that all the services
rendered by them are exempted. However, they paid
Page 7 of 16
Appeal Nos.:ST/78837/2018
ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB
service tax on some of these services as per their
understanding at that time. From the service tax
payments mentioned above, it can be seen that
there were short payment of service tax for the
years 2011-12 and 2012-13. Since, the allegation of
suppression is not established, no demand will
survive for this period on limitation. As per the
calculation available in the impugned order, they
have made excess payments for the years 2013-14
and 2014-15. Thus, the appellant submits that no
demand confirmed in the impugned order would
survive on the ground of limitation.
4.3. Regarding invocation of extended period of
limitation to demand service tax, the appellant
submits that the department had conducted audit
from 09.01.2013 to 11.01.2013 for the period 2010-
11 to 2012-13 (upto December, 2012) resulting in
two audit objections.
(i) Short payment of ST amounting to Rs.
516150/- during July, 2011 to March, 2012.
Pursuant to which appellant paid the
amount along with interest and penalty
computed by the auditors. The mistake
actually occurred because of newly
introduced Point of Taxation Rules, 2011 to
which the appellant was not aware.
(ii) Non-payment of service tax of Rs. 6,92,628/-
pertaining to Sep, 2012 and Oct, 2012. The
amount was paid. The mistake had occurred
because of computational error on their
part.
4.4. Thus, the appellant submits that they have not
suppressed any information from the department.
Page 8 of 16
Appeal Nos.:ST/78837/2018
ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB
They have been filing returns and paying service tax
as per their understanding of their service tax
liability. Department has conducted audit and they
have discharged service tax in respect of the
objections raised by the audit team. Thus, the
appellant submits that the demand confirmed in the
impugned order by invoking extended period of
limitation is not sustainable.
4.5. The appellant further submits that the
demands have been raised on the basis of the data
available in the Balance Sheet and the ST-3 returns
filed by them. The 26AS statements also clearly
indicates the amount received by them for the
services rendered. As there is no suppression of fact
with intention to evade the tax established in this
case, the appellant submits that the demands
confirmed by invoking extended period of limitation
is not sustainable.
4.6. Regarding, the appeal filed by the Revenue,
the appellant submitted that the Ld. adjudicating
authority verified their record and arrived at the
conclusion that the appellant has not availed CENVAT
Credit and hence they are eligible for abatement as
claimed by them. However, in the Grounds of
Appeal, it has been contended that there is no
evidence submitted by the appellant that they have
not availed CENVAT Credit. In this regard, the
appellant submits that the department also has not
submitted evidence to prove that the appellant has
availed CENVAT Credit. It is their submission that the
ST-3 returnd filed by them clearly indicates that no
Cenvat credit has been availed by them. Accordingly,
the appellant submits that there is no merit in the
Page 9 of 16
Appeal Nos.:ST/78837/2018
ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB
appeal filed by the Revenue and prayed for rejecting
the same.
5. Regarding the demands confirmed, the Ld. A.R.
reiterated the findings of the adjudicating authority
in the impugned order. Regarding dropping of the
demands in the impugned order, the Ld. A.R.
reiterated the Grounds of Appeal filed by the
revenue.
6. Heard both sides and perused the appeal
documents.
7. We observe that the appellant have been
rendering the following services:
(i) shifting and installation of Electric Power Lines for
construction of several national highways at different
sites
(ii) installation and commissioning DCDB Box,
installation of antenna mounts on existing towers,
internal electrical works for upgradation of tower
sites, supply and installation of MCB etc for different
telephone companies namely, Reliance Infratel
Limited, Vodafone Spacetel Limited, Bharti Infratel
Limited etc,
(iii) Shifting, erection, dismantling, laying of Utilities
(Electrical Lines) for different Power distribution
companies.
7.1. The appellant claimed that all the above
activities are exempted from payment of service tax.
The activity of shifting and installation of Electric
Power Lines for construction of roads is exempted by
Circular No.123/5/2010-TRU dated 24th May, 2010.
Page 10 of 16
Appeal Nos.:ST/78837/2018
ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB
For ready reference, the relevant part of the said
Circular is reproduced below:
Circular No.123/5/2010-TRU
F.No.332/5/2010-TRU
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
(Tax Research Unit)
.....
New Delhi
dated the
24th May
2010.
Madam/Sir,
Subject: Applicability of service tax on laying of cables under or alongside roads and similar activities
- clarification regarding.
Disputes have arisen in some parts of the country regarding applicability of service tax on certain activities such as shifting of overhead cables to underground on account of renovation/widening of Page 11 of 16 Appeal Nos.:ST/78837/2018 ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB roads; laying of electrical cables under or alongside roads/railway tracks; between grids/sub- stations/transformers the distribution points of residential or commercial complexes and such activities as electrification of railways, installation of street-lights, traffic lights, flood-lights. This clarification takes into account the taxability of different activities taking into account the scope of all services (such as site formation/excavation/ earth moving service, commercial or industrial construction services; erection, commissioning or installation services; or works-contract service) that are presently taxable as well as those which are covered under the Finance Act, 2010.
2. Scope of certain taxable services in brief;
(i)) 'Commercial or industrial construction services', in brief, cover construction of and the completion, finishing, repair, alteration, renovation, restoration or similar activities pertaining to buildings, civil structures, pipelines or conduits. Therefore, only such electrical works that are parts of (or which result in emergence of a fixture of) buildings, civil structures, pipelines or conduits, are covered under the definition of this taxable service. Further, such activities undertaken in respect of roads, railways, transport terminals, bridges, tunnels and dams are outside the scope of levy of service tax under this taxable service.
(ii) Under 'Erection, commissioning or installation services', the activities relevant to the instant issue Page 12 of 16 Appeal Nos.:ST/78837/2018 ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB are (a) the erection, commissioning and installation of plant, machinery, equipment or structures; and
(b) the installation of electrical and electronic devices, including wiring or fitting there for. Thus, 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. a machine or equipment that uses electricity to perform some other function) the same is outside the purview of this taxable service.
(iii) 'Works Contract' incorporates the inclusions and exclusions of the aforementioned two taxable services (amongst others) and it is the nature of the contract (i.e. a contract wherein the transfer of property in goods involved is leviable to a tax as sale of goods) rather than the nature of activities undertaken, that distinguishes it from the previously stated taxable services. Thus, even in the case of 'works contract' if the nature of the activities is such that they are excluded from aforesaid two services then they would generally remain excluded from this taxable service as well.
(iv) 'site formation and clearance, excavation, earthmoving and demolition services' are attracted only if the service providers provide these services independently and not as part of a complete work such as laying of cables under the road
3. The taxable status of various activities, on which disputes have arisen Page 13 of 16 Appeal Nos.:ST/78837/2018 ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB Based on the foregoing, the following would be the tax status of some of the activities in respect of which disputes have arisen,-
S.No. Activity Status
1. Shifting of overhead Not a taxable
cables/wires for any service under any
reasons such as clause of sub-
widening/renovation of section (105) of
roads section 65 of the
Finance Act,
1994
2. Laying of cables under or Not a taxable
alongside roads service under any
clause of sub-
section (105) of
section 65 of the
Finance Act,
1994
3. Laying of electric cables Not a taxable
between grids/sub- service under any
stations/transformer clause of sub-
stations en route section (105) of
section 65 of the
Finance Act,
1994
Page 14 of 16
Appeal Nos.:ST/78837/2018
ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB 7.2. From the above clarification, we observe that the activities of shifting of overhead cables/wires for reasons such as widening/renovation of roads, laying of cables under or alongside roads, laying of electric cables between grids/sub-stations/transformer stations en route were specifically excluded from payment of service tax. From the Work Orders submitted by the appellant, we find that the activities undertaken by the appellant are specifically covered within the exemptions mentioned above. Accordingly, we observe that the no service tax is payable by the appellant on the said activities.
7.3. Regarding Shifting, erection, dismantling, laying of Utilities (Electrical Lines) for different Power distribution companies, we observe that these activities are related to distribution of power, which has been exempted from payment of service tax unconditionally. We observe that this view has been taken by this Tribunal, Ahmedabad in the case of Shresth Leasing & Finance Ltd. v CCE&ST, Surat-I [(2022) 1 Centax 64 (Tri-Ahmd)]. The relevant part of the said decision is reproduced below:
7.4. Regarding the shifting of utilities for Telecom companies, we observe that the said activity is covered within the exemption. Even though no service tax payable on such activities, the appellant has paid service tax on such service rendered to Telecom Companies after availing abatement as provided under notification 1/2006, as they were using materials. Here, we observe that there is no short payment alleged during the normal period of limitation. The demand of service tax for the Page 15 of 16 Appeal Nos.:ST/78837/2018 ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB extended period is not sustainable. Thus, we hold that the services rendered by the appellant are not liable to service tax and hence the demands of service tax along with interest confirmed in the impugned order are liable to be set aside on merits.
7.5. Regarding invocation of extended period to demand service tax, we find that the appellant have not suppressed any information from the department. They have been filing returns and paying service tax as per their understanding of their service tax liability. Department has conducted audit and they have discharged service tax in respect of the objections raised by the audit team. Further, we find that the demands have been raised on the basis of the data available in the Balance Sheet and the ST-3 returns filed by them, as evidenced from the below mentioned table in the impugned order:
7.6. The AS26 statements also clearly indicates the amount received by them for the services rendered.
As there is no suppression of fact with intention to evade the tax established in this case, we hold that the demands confirmed by invoking extended period of limitation is not sustainable.
7.7. From the documents submitted by the appellant, we observe that there were short payments for the years 2011-12 and 2012-13. Since, the allegation of suppression is not established, no demand will survive for this period on limitation. As Page 16 of 16 Appeal Nos.:ST/78837/2018 ST/Cross Objection No. 75529/2019 & ST/75404/2019-DB per the calculation available in the impugned order, the appellant has made excess payments for the years 2013-14 and 2014-15. Thus, we observe that no demand confirmed in the impugned order would survive on the ground of limitation.
7.8. Accordingly, we hold that the demands confirmed in the impugned order are not sustainable on merit as well as on limitation. As the demand itself is not sustainable, the question of demanding interest or imposing penalty does not arise.
8. In view of the above discussions, we set aside the impugned order and allow the appeal filed by the appellant with consequential relief, if any, as per law. The appeal and the cross objection filed by the Revenue is dismissed.
(Order Pronounced in Open court on 09.07.2025) (ASHOK JINDAL) MEMBER (JUDICIAL) (K. ANPAZHAKAN) MEMBER (TECHNICAL) rkp