Custom, Excise & Service Tax Tribunal
Kalpataru Power Transmission Ltd vs Ahmedabad-Iii on 10 July, 2019
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
REGIONAL BENCH- COURT NO.1
Service Tax Appeal No. 672 of 2010
[Arising out of OIO-46/COMMR/2010 passed by Commissioner of Central Excise-
AHMEDABAD-III]
M/s Kalapatru Power Transmission Ltd. ........Appellant
101, Part-III, GIDC Estate, Sector, 28, Gandhinagar,
VERSUS
C.C.E. & S.T.-Ahmdabad-iii .......Respondent
Custom House, Navrangpura, Ahmedabad-3800009 APPEARANCE:
Sh. V. Sridharan (Sr. Adv.) with Sh. Jigar Shah (Adv.) for the Appellant Sh. Sameer Chitkara, Authorised Representative for the respondent CORAM: HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) HON'BLE MR. RAJU, MEMBER (TECHNICAL) Final Order No. A/ 11085 /2019 DATE OF HEARING: 11.03.2019 DATE OF DECISION:10.07.2019 RAMESH NAIR The present appeal has been filed against the impugned order dated 20.09.2010 passed by the Commissioner of Central Excise, Ahmedabad-III against the Appellant, M/s Kalpataru Power Transmissions Ltd. The brief facts of the case are that the Appellant are engaged in the manufacture of fabricated and galvanized transmission line tower parts made of steel, angles and plates falling under CTH 73 of the CETA, 1985, for which they held central excise registration. They were issued Show cause notice dated 27.01.2005 alleging that the Appellant is engaged in testing, erection and commissioning of Tower line at the site of various State Electricity Boards, M/s Power Grid Corporation of India Ltd and Foreign bodies. These Customers place orders on contract basis for supply and erection separately. The contracts are on open tender system obtained through International Competitive Bidding and Domestic Comparative Bidding. The Appellant is collecting erection and commissioning charges which were shown
2|Page ST/672/2010-DB under job work receipts and the same are chargeable to service tax w.e.f. 1.7.2003. Consequently, a service tax demand of Rs. 15,35,83,991/- for the period 1.4.1999 to 9.9.2004 under Section 73
(a) of the Finance Act, 1994 was proposed on the ground that the services provided by the Appellant to their customers should be considered as taxable under the category of " Consulting Engineer" and the fees / charges for erection, testing and commissioning are to be considered as taxable value. Though the adjudicating authority vide impugned order dated 20.9.2010 held that for the period 1999 to 30.6.2003, the demand under heading " Consulting Engineer" is not sustainable, however held that the demand of Rs. 8,78,84,996/- of service tax is payable by the Appellant as they have rendered the services of installation of equipment during the period from 1.7.2003 to 9.9.2004, which attracts service tax as per the then prevailing provisions of Finance Act 1994. He also imposed penalty u/s 78 of the Finance Act. Hence present appeal.
2. Ld. Senior Counsel, Shri V. Sridharan along with Counsel Shri Jigar Shah appearing for the Appellant submits that the demand made against the Appellant under the category of commissioning and installation service for the period 1.7.2003 to 9.9.2004 is not sustainable as the activity of erection, commissioning and installation carried out by the appellant is in the nature of works contract, which was not taxable prior to 1.6.2007. He relies upon the Hon'ble Supreme Court judgment in case of Larsen & Toubro Ltd - 2015 (39) STR 913 (SC). He also submits that the Govt. has issued Notification No. 45/2010-ST dated 20.07.2010 under Section 11C of the Central Excise Act., 1944 granting exemption from payment of service tax to any service in relation to transmission and distribution of electricity. He relies upon the Tribunal orders in case of Noida Power Company Ltd. 2014 (33) STR 383 ( Tri, Del) and Paschimanchal Vidyut Vitran Nigam - 2012 (28) STR 412 (Tri). He also relies upon the following judgments :
i) Kedar Construction 2015 (37) STR 631 (Tri, Mum)
ii) Sri Rajyalakshmi Cement Products - 2017 (52) STR 309 (Tri,Hy)
iii) U.P. RajkiyaNirman Nigam Ltd -2016 (41)STR 967 (Tri, Del)
3|Page ST/672/2010-DB
iv) Md. Ayub Khan 2015 (40) STR 267 (Tri)
v) Richardson & Cruddas Ltd - 2016 (3) TMI 899 -CESTAT,Mum
vi) Narsimha Engineering Works - Final order No. A/87075/2018 dated 16.7.2018, CESTAT, Mumbai
3. He further submits that the activities of the Appellants are in the nature of erection / commissioning and installation of electricity transmission tower, which were not covered under the taxable category of commissioning and installation services during the period 1.7.2003 to 9.9.2004 as the same became taxable after word " erection" was added to the scope of service in the nature of commissioning and installation service w.e.f. 10.09.2004. He also relies upon CBEC circular No. 59/8/2003-ST dated 20.06.2003, which clarified that the erection is not covered under the definition of commissioning and installation service during the impugned period. He also relies upon the CBEC Circular No. 123/5/2010-TRU dated 24.05.2010 to submit that erection, commissioning and installation of transmission towers will not result into any category of taxable service. He also relies upon the Tribunal judgment in case of Aakriti Construction - 2017 (7) GSTL -478 (Tri.). He further submits that the Revenue authorities have accepted the classification under the category of construction service and w.e.f. 1.6.07 as Works Contract service for the same activities for subsequent period. Therefore, the demand under the impugned category is not correct. He also submits that the demands are beyond the scope of show cause notice as the demand was proposed under the category of "Consulting Engineer" whereas the same has been confirmed under "erection & commissioning Services" and hence not sustainable. He relies upon the judgments in case of Ballarpur Industries - 2007 (215) ELT 489 (SC) and Gas Authority of India Ltd - 2008 (232) ELT 7 (SC).
4. Shri Sameer Chitkara, Ld. Additional Commissioner (AR) appearing for the Revenue supports the impugned order and submits that the services are covered under the heading of erection service and hence are liable to service tax and the appellant is also liable for penalty.
4|Page ST/672/2010-DB
5. Heard both the sides and perused the facts of the impugned case. The impugned demands covers the period 1.7.2003 to 9.9.2004. The Appellants during this period were engaged in the erection of transmission towers. The facts of the case show that the Appellant during the relevant period, were engaged in the supply of electricity transmission towers as well as rendering services of erection of the same. Such services would undoubtedlymerit classification under Works Contract Service. From the assessment order passed by the VAT authorities for the impugned period, we find that the Appellant's services were classified under Works Contract under Gujarat VAT. The Hon'ble Apex Court in the case of Larsen & Toubro Ltd 2015 (39) STR 913 (SC) has held that Works contracts are not liable for service tax for the period prior to 01.06.2007. The findings of the relevant portion of the Hon'ble Court are as under :
"20. We also find that the assessees‟ argument that there is no charge to tax of works contracts in the Finance Act, 1994 is correct in view of what has been stated above.
21. This Court in Mathuram Agrawal v. State of M.P., (1999) 8 SCC 667, held :-
"Another question that arises for consideration in this connection is whether sub-section (1) of Section 127-A and the proviso to sub-section (2)(b) should be construed together and the annual letting values of all the buildings owned by a person to be taken together for determining the amount to be paid as tax in respect of each building. In our considered view this position cannot be accepted. The intention of the legislature in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not follow from the plain, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax law i.e. the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute
5|Page ST/672/2010-DB then there is no tax in law. Then it is for the legislature to do the needful in the matter.
This construction, in our considered view, amounts to supplementing the charging section by including something which the provision does not state. The construction placed on the said provision does not flow from the plain language of the provision. The proviso requires the exempted property to be subjected to tax and for the purpose of valuing that property alone the value of the other properties is to be taken into consideration. But, if in doing so, the said property becomes taxable, the Act does not provide at what rate it would be taxable. One cannot determine the rateable value of the small property by aggregating and adding the value of other properties, and arrive at a figure which is more than possibly the value of the property itself. Moreover, what rate of tax is to be applied to such a property is also not indicated." (at paras 12 and 16)
22. Equally, this Court in Govind Saran Ganga Saran v. CST, 1985 Supp SCC 205, held :-
"The components which enter into the concept of a tax are well known. The first is the character of the imposition known by its nature which prescribes the taxable event attracting the levy, the second is a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax, the third is the rate at which the tax is imposed, and the fourth is the measure or value to which the rate will be applied for computing the tax liability. If those components are not clearly and definitely ascertainable, it is difficult to say that the levy exists in point of law. Any uncertainty or vagueness in the legislative scheme defining any of those components of the levy will be fatal to its validity." (at para 6)
23. To similar effect is this Court‟s judgment in CIT v. B.C. Srinivasa Setty, (1981) 2 SCC 460, held :-
"Section 45 charges the profits or gains arising from the transfer of a capital asset to income tax. The asset must be one which falls within the contemplation of the section. It must bear that quality which brings Section 45 into play. To determine whether the goodwill of a new business is such an asset, it is permissible, as we shall presently show, to refer to certain other sections of the head, "Capital gains".
Section 45 is a charging section. For the purpose of imposing the charge. Parliament has enacted detailed provisions in order to compute the profits or gains under that head. No existing principle or provision at variance with them can be applied for determining the chargeable profits and gains. All transactions encompassed by Section 45 must fall under the governance of its computation provisions. A transaction to which those provisions cannot
6|Page ST/672/2010-DB be applied must be regarded as never intended by Section 45 to be the subject of the charge. This inference flows from the general arrangement of the provisions in the Income Tax Act, where under each head of income the charging provision is accompanied by a set of provisions for computing the income subject to that charge. The character of the computation provisions in each case bears a relationship to the nature of the charge. Thus the charging section and the computation provisions together constitute an integrated code. When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section. Otherwise one would be driven to conclude that while a certain income seems to fall within the charging section there is no scheme of computation for quantifying it. The legislative pattern discernible in the Act is against such a conclusion. It must be borne in mind that the legislative intent is presumed to run uniformly through the entire conspectus of provisions pertaining to each head of income. No doubt there is a qualitative difference between the charging provision and a computation provision. And ordinarily the operation of the charging provision cannot be affected by the construction of a particular computation provision. But the question here is whether it is possible to apply the computation provision at all if a certain interpretation is pressed on the charging provision. That pertains to the fundamental integrality of the statutory scheme provided for each head." (at para 10)
24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines "taxable service" as "any service provided". All the services referred to in 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.
25. In fact, by way of contrast, Section 67 post amendment (by the Finance Act, 2006) for the first time prescribes, in cases like the present, where the provision of
7|Page ST/672/2010-DB service is for a consideration which is not ascertainable, to be the amount as may be determined in the prescribed manner."
5.1. We also find that that by virtue of Notification No. 45/2010- ST dated 20.7.2010, exemption was granted from payment of service tax to any service in relation to transmission and distribution of electricity. The relevant extracts of the same are asunder :-
"Now, therefore, in exercise of the powers conferred by section 11C of the Central Excise Act, 1944 (1 of 1944), read with section 83 of the said Finance Act, the Central Government hereby directs that the service tax payable on said taxable services relating to transmission and distribution of electricity provided by the service provider to the service receiver, which was not being levied in accordance with the said practice, shall not be required to be paid in respect of the said taxable services relating to transmission and distribution of electricity during the aforesaid period."
5.2 Undoubtedly the services rendered by the Appellant were related to erecting towers for transmission of electricity and hence merits exemption by virtue of subject Notification. Further in case of Noida Power Co.Ltd - 2014 (33) STR 383 (Tri, Del), the Tribunal has held as under :
2. The assessee is a company, registered under the Companies Act, 1965 and is a distribution licensee under the Electricity Act, 2003. The business of the assessee is sale of electricity which is wholly regulated by provisions of the Electricity Act. In pursuant of its business, the assessee has to develop and maintain an efficient, coordinated and economical distribution network within its area of supply.
To supply electricity to its consumers a network is first created. The assessee established a distribution network for providing connections to consumers within its jurisdiction. The network involves installation, erection, commissioning of transmission towers and connectors for transmitting energy to various consumers for supply of HT & LT electricity and installation of meters to measure consumption of monthly energy. The assessee recovers the charges for these services periodically, an area which is also regulated by law. Revenue initiated proceedings against the assessee for recovery of Service Tax under the taxable head "Erection, Commissioning & Installation Service", defined in Section 65(39a) read with Section 65(105)(zzb) of the Act. The assessee claimed immunity to tax on the basis of Notification No. 45/2010-S.T., dated 20- 7-2010. This notification issued in the exercise of the power
8|Page ST/672/2010-DB conferred by Section 11C of the Central Excise Act, 1944 read with Section 83 of the Act provided that Service Tax payable under all taxable services relating to transmission and distribution of electricity provided by the service provider to the service receiver, which was not being levied in accordance with the said practice, shall not be required to be paid in respect of the said taxable service relating to the transmission of electricity during the period till 26-2- 2010 and in respect of all taxable services relating to distribution of electricity provided by persons till 22-6- 2010. The preamble to this notification states that a practice was generally prevalent regarding levy of Service Tax (including non-levy thereof), under Section 66 of the Finance Act, 1994 in respect of taxable services relating to transmission and distribution of electricity provided by a person to any other person and though all such services were liable to Service Tax under the Act. In this appeal Distribution of electricity is the demonstrated business of the assessee. Under Notification No. 32/2010-S.T., dated 22-6-2010 [issued in exercise of powers conferred under Section 93(i) of the Act] the Central Government has exempted the taxable service provided to any person, by a distribution licensee, a distribution franchisee, or any other person authorized to distribute power under the Electricity Act, 2003, for distribution of electricity, from the whole of the Service Tax leviable thereon under Section 66 of the Act. This exemption Notification applied prospectively, from the date of its publication in the official Gazette. The Gazette publication was on 22-6-2010. The exemption was issued as a policy choice, to exempt distribution of electricity, a taxable service from the liability to Service Tax, in larger public interest. Since the exemption notification dated 22-6-2010 was prospective, the period prior to 22-6-2010 was covered by issuing Notification No. 45/2010-S.T., dated 20-7-2010, in exercise of powers under Section 11C of the Central Excise Act, to cover the period extension exterior to 22-6-2010 (date of exemption notification), by the immunity to tax cover.
3. In issuing Exemption Notification dated 22-6-2010 read with the Notification No. 45/2010-S.T., dated 20-7-2010, the Central Government signalled the clear policy choice that levy of Service Tax on activities in relation to the distribution of electrical energy by a distribution agency is exempt from levy of Service Tax.
4. The analysis of the Adjudication Authority in relation to the assessee‟s claim for immunity to Service Tax is predicated on the Notification dated 20-7-2010 vide paragraph 5.1 of the order-in-original under title "Discussion and Findings". The Adjudicating Authority held that the notifications do not exempt the activity/service of installation of various equipments at the consumers premises, as this service is different from and in addition to service of distribution of electricity; that equipment
9|Page ST/672/2010-DB installed by the assessee is not in lieu of hire charges; that the infrastructure (established by the assessee) is used to supply electricity to various consumers and the consumers do not have ownership of the transformers. The contention by the assessee that installation of the various equipment, establishing the network is an essential component of his business of distribution of electricity which is carried out in terms of the provisions of the Electricity Act, 2003 was rejected on the ground that all duties required to be delivered by a distribution licensee under provisions of Electricity Act are not exempt from payment of Service Tax. Other contentions were urged on behalf of the assessee has were also rejected by the Adjudicating Authority.
5. On true and fair analysis of the Exemption Notification dated 22-6-2010 and the immunity Notification dated 20-7- 2010, the conclusion is compelling that all taxable services provided in relation to distribution of electrical energy are exempt from the liability to Service Tax. The expression "in relation to" is of wide import and indicates all activities having a direct and proximal nexus with distribution of electrical energy. Distribution of electricity energy cannot be effectively accomplished without installation of sub- stations, transmission towers and installation of meters to record electricity consumption for periodic billing and recovery of charges.
6. In M.P. Power Transmission Co. Ltd. v. CCE, Bhopal - 2011 (24) S.T.R. 67 (Tri.-Del.) Revenue demand of Service Tax on transmission and distribution of electricity was declared unsustainable in view of Notification No. 45/2010, dated 20-7-2010. Again in Paschimanchal Vidyut Vitran Nigam Ltd. v. CCE, Meerut - 2012-TIOL-1175-CESTAT-DEL = 2012 (28) S.T.R. 412 (Tri.-Del) after analyzing the provision of Notification No. 45/2010-S.T., dated 20-7- 2010 it was held that for the purpose of billing the consumer for electricity consumed it is essential to install the electricity meter having capacity to withstand the load provided to the customer; any activity or service like erection, commissioning and installation of transmission towers and meters as also technical testing and analysis would constitute the activity of transmission and distribution by the service provider to the service receiver; and such service would be squarely covered under exemption provided under this notification. The earlier decision in M.P. Power Transmission Co. Ltd. was affirmed.
In following judgments, similar views were taken by the Tribunal :
i) Paschimanchal Vidyut Vitran Nigam 2012 (28) STR 412 (Tri,Del)
ii) Kedar Construction 2015 (37) STR 631 (Tri, Mum) 10 | P a g e ST/672/2010-DB
iii) Sri Rajyalakshmi Cement Products - 2017 (52) STR 309 (Tri,Hy)
iv) U.P. RajkiyaNirman Nigam Ltd -2016 (41)STR 967 (Tri, Del)
v) Md. Ayub Khan 2015 (40) STR 267 (Tri)
vi) Richardson & Cruddas Ltd - 2016 (3) TMI 899 -CESTAT,Mum
vii) Narsimha Engineering Works - Final order No. A/87075/2018 dated 16.7.2018, CESTAT, Mumbai We also find that during the impugned period, the activity of only commissioning and installation was taxable and only from 10.9.2004, the services of erection were included /adduced to commissioning and installation service so as to make the same taxable. The same is explicit from the CBEC Circular No. 59/8/2003-ST dated 20.6.2003 wherein the Board has viewed as under :-
"Commissioning and Installation Services :
In case of commissioning and installation, it h commissioning and installation as been pointed out that in case of turnkey project, the contract may be indivisible and no separate value could be assigned to commissioning and installation of goods. Doubts have also been raised as to what would be the value of taxable service. It is submitted that it has been provided in law that service tax is leviable on erection and commissioning charges only and not on the material and goods supplied. However, it is upto the service provider to show the break-up of commissioning and installation charges. In case service provider shows consolidated charges, service tax would be leviable on such consolidated amount.
A doubt has been raised as to whether charges for erection of plant are covered under the service tax or only commissioning and installation charges. It is clarified that the law specifically provides for taxation of commissioning and installation of plant, machinery or equipment. Thus, all activities other than the commissioning and installation of the plant / machinery / equipment per se will not be chargeable to service tax.
Further, vide Circular No. 80/10/2004-ST dated 17.9.2004, the Board has clarified the scope of amended definition of erection, commission & installation services :
Service tax was levied on comissioning and installation of plant, machinery and equipment w.e.f. 1.7.2003. The general practice is that „ erection, commissioning and installation‟ are contracted as a composite package. There have been a number of doubts and queries regarding the distinction between erection and commissioning / installation. Erection would refer to the civil works to installation / commissioning of a plant or machinery. In this 11 | P a g e ST/672/2010-DB year‟s budget, the scope of service tax under installation and commissioning is being extended to included erection also. Erection involves civil works, which would otherwise fall under the category of construction services. However, in case of a composite contract for erection, commissioning and installation, the erection charges would be taxed as part of this category of service.
Also, CBEC circular No. 123/5/2010-TRU dated 24.5.2010 has clarified that erection, commissioning and installation of transmission towers will not result into any category of taxable service. Relevant extracts of the same are asunder :
"2. Scope of certain taxable services in brief :
ii)‟ Under „Erection, Commissioning or installation services‟ the activities relevant to the instant issue 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.
" 3. The taxable status of various activities, on which disputes have arisen :
Based on the foregoing, the following would be the tax status of some of the activities in respect which disputes have arisen :
S.No. Activity Status
1 Shifting of overhead cables Not a taxable service under
/ wires for any reasons any clause of sub-section (105)
such as widenikng / of section 65 of the Finance
renovating of roads Act, 1994
2 Laying of cables under or Not a taxable service under
along wide roads any clause of sub-section (105)
of section 65 of the Finance
Act, 1994
3 Laying of electric cables Not a taxable service under
between grids / sub- any clause of sub-section (105)
stations /transformer of section 65 of the Finance
stations en route Act, 1994
4 Installation of transformer / Taxable service, namely
sub-stations undertaken erection, commissioning or
independently installation services (section
65 (105) (zzd)
12 | P a g e ST/672/2010-DB
5 Laying of electric cables Not a taxable service under
upto distribution point of any clause of sub-section (105) residential or commercial of section 65 of the Finance localities / complexes Act, 1994 The Tribunal in case of Aakriti Construction - 2017 (7) GSTL-478 (Tri) in para 6 of the impugned order has held as under :
"6.With regard to the erection and commissioning of pipelines, we find that the work order was issued by M/s. RSWML for carrying out the activities by the appellants during the period 24-2-2004 to 8-4-2004. "Installation service" was brought into the statute book w.e.f. 10-9- 2004 by Section 90 of the Finance (No. 2) Act, 2004. Since the period involved in this case is prior to the effective date i.e. 10-9-2004, the services provided by the appellant for erection and commissioning of pipelines will not be subjected to levy of service tax under the category of "erection, commissioning or installation service". With regard to "manpower and supply services", we find that M/s. RSWML vide the work order dated 25- 2-2004 has awarded the job of operation, installation, etc. of the water pumps. The terms and conditions annexed to the work order provide that the appellant shall properly ensure deployment of the manpower for executing the said work. Since the primary conditions in the work order is for operation and installation of the pumps and not for supply of manpower, we are of the view that service tax demand confirmed by the authorities below under the category of "manpower supply services" will not stand for judicial scrutiny. With regard to barbed wire fencing for plantation, the facts are not under dispute that the said activities are not related to the "commercial plantation or industrial services".
Rather, for the purpose of beautification or prevention from pollution, the barbed fencing were erected by the appellant. Since the activities are not in relation to the "commercial or industrial service", the service tax demand confirmed under that category of service will also not be sustainable."
6. We also find that for the subsequent period, the Revenue authorities have themselves classified the service under the category of works contract for the same activity. Thus in view of facts of the case, the Hon'ble Apex Court order in Case of Larsen &Tubro and Tribunals order as well as CBEC circulars, Notifications issued under Section 11-C of Central Excise Act, we hold that the services of erection rendered by 13 | P a g e ST/672/2010-DB the Appellant during the impugned period are not liable for service tax. We also find that in the show cause notice, the demands were made under the category of Consulting Engineer, whereas in the impugned order, the demands were made under the category of erection services, which amounts to change of classification. Clearly, the demand has travelled beyond the scope of show cause notice as no demands were made under the category of erection service. Our views are based upon the judgment of the Hon'ble Apex Court in case of Ballaspur Industries Ltd - 2007 (215) ELT 489 (SC), Gas Authority of India Ltd - 2008 (232) ELT 7 (SC) and Gujarat High Court in case of M/s Reliance Industries Ltd 2016 (334) EST 630 (Guj). For this reason also the demand is not sustainable.
7. Resultants we hold that the demand of service tax and penalty against the Appellant are not sustainable. We thus set aside the impugned order and allow the appeal with consequential reliefs, if any.
(Order pronounced in the open court on 10.07.2019) (Ramesh Nair) Member (Judicial) (Raju) Member (Technical) Neha