2012 (7) TMI 224 - AT - Service Tax

Appellant wins service tax case: Not liable for 'Commercial or Industrial Construction Service'

M/s PHONIEX ENGINEERING Versus COMMISSIONER OF CENTRAL EXCISE, NAGPUR

The Tribunal ruled in favor of the appellant, holding that their services did not fall under 'Commercial or Industrial Construction Service' for service ... Demand of service tax - 'Commercial or Industrial Construction Service' - services of repair, renovation, widening of roads and construction of toll sheds, providing electrification of high mast poles at toll sheds etc. – Held that:- in the view of Board's Circular No. 110/4/2009-ST dated 23.2.2009. Activity undertaken by the appellant is not covered under the category of 'commercial or industrial construction service' Issues:Classification of services under 'Commercial or Industrial Construction Service' for service tax liability.Analysis:The appeal and stay application were filed against the order-in-original passed by the Commissioner of Customs & Central Excise, Nagpur. The appellant, engaged in repair, renovation, widening of roads, construction of toll sheds, and electrification of high mast poles, was facing a service tax demand of Rs.67,79,026 for the period 10.09.2004 to 31.03.2009. The department contended that these services fell under 'Commercial or Industrial Construction Service'. However, the appellant argued that their activities should be classified under 'management, maintenance, or repair provided under a contract in relation to properties', as per a Board's Circular. They relied on Tribunal judgments to support their position.The Tribunal noted that 'Industrial or Commercial Construction Service' excludes construction of roads and related services like repair, alteration, renovation, or restoration. The Board's Circular clarified that maintenance or repair provided under a contract in relation to properties is taxable, but construction or repair of roads is not covered under 'Commercial or Industrial Construction Service'. As the appellant's activities were not within the scope of the service in question, the Tribunal found merit in the appellant's arguments. Consequently, the Tribunal granted an unconditional waiver of the service tax demand, interest, and penalties imposed, staying the recovery during the appeal process.In conclusion, the Tribunal ruled in favor of the appellant, holding that their services did not fall under 'Commercial or Industrial Construction Service' for service tax liability. The appellant's reliance on the Board's Circular and Tribunal judgments proved crucial in establishing their case and securing a waiver of the dues adjudged in the impugned order.