2010 (5) TMI 162

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..../s Rajeev Electrical Works (for short "the assessee") (electrical contractor) was engaged in electrical fittings and registered on 30.11.2004 for providing erection, commissioning and installation services. The revenue claimed that during the course of audit, it revealed that although the service of commissioning and installation was brought under the service tax net with effect from 1.7.2003 by the Finance Act, 1994 (for brevity "the Act"), but the assessee started paying service tax with effect from December, 2004. Therefore, a show cause notice dated 1.11.2006 (Annexure A1) was issued to the assessee, as to why the service tax be not recovered alongwith interest by invoking the extended period and penal action be not taken for violation ....

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....nexure A3), the assessee filed the appeal, which was accepted by the Customs, Excise and Service Tax Appellate Tribunal, vide impugned order dated 17.12.2007 (Annexure A4). 6. The revenue did not feel satisfied with the impugned order (Annexure A4) and filed the present appeal, which was admitted to consider the following substantial question of law by this Court:- "Whether the activities like laying the pipe in wall/roof/floor for crossing of wires, fixing the junction box, MS box, Wooden Box, fixing the cables trays to lay the cables, digging the earth to lay the cables and digging the earth pits for earthing of equipments fall within the scope of erection and thus liable to Service Tax in the category of "erection, commissioning or ins....

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....re, service tax was not leviable in this regard. 12. Clause (39a) of the Act postulates that "erection, commissioning or installation" means any service provided by a commissioning and installation agency in relation to erection, commissioning or installation of plant and machinery or equipment". In order to bring the assessee in the purview of tax, it was incumbent upon the revenue to prove by cogent evidence that during the relevant period, the work carried out by it (assessee) would amount to installation of plant, commissioning, machinery and equipment, which is totally lacking in this case. 13. The learned counsel for the revenue miserably failed to point out any material to prove that the assessee has provided any service of commiss....