TaxTMI 
TaxTMI 
2012 (7) TMI 633
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....es on the foundation, roofing, installation of lighting, false ceiling, painting etc. The point of dispute is as to whether their activity was 'Commercial or Industrial construction service' taxable under Section 65 (105) (zzq) readwith Section 65 (25) of Finance Act, 1994 w.e.f. 10/9/04 or the same was "erection, installation and commissioning" service (erection of structures) which became taxable only from May 2006. The department was of the view that the Appellant's service is commercial or industrial construction service taxable since 10/9/04 and on this basis, the Commissioner vide order-in-original No. 1/COMMR/ST/ADJ/BPL-I/2011 dated 13/01/11 confirmed the service tax demand of Rs.1,48,96,727/- alongwith interest and imposed penalty o....
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....rtificate was issued to them by the Jurisdictional Central Excise Superintendent for commercial or industrial construction service, that, thereafter, vide their letter dated 24/3/05 addressed to the Jurisdictional Assistant Commissioner under copy to the Superintendent, the appellant requested for endorsement in their registration certificate the "erection, installation or commissioning" service and the needful was done by the Superintendent, that the appellant w.e.f. 1/5/06 started paying service tax under erection, installation, commissioning service, as according to them prior to 1/5/06 their activity was not taxable either as commercial or industrial construction service or as erection, installation, commissioning service, that w.e.f. 1....
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....became taxable as "erection, installation or commissioning service" under Section 65 (105) (39a) of the Finance Act, 1994 w.e.f. 1/5/06, while according to Department, this activity is "commercial or industrial construction service" which was taxable under Section 65 (105) (zzq) readwith Section 65 (25b) w.e.f. 10/9/04. 8. During period w.e.f. 1/5/06, Section 65 (39a) defined "erection, commissioning or installation" as any service provided by a commissioning and installation agency in relation to - (i) erection, commissioning or installation of plant, machinery, equipment or structures, whether prefabricated or otherwise ; or (ii) installation of - (a) electrical and electronic devices, including wiring or fittings thereafter; ....
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....uction of a civil structure for commercial use and would be covered by "commercial or industrial construction service" which became taxable w.e.f. 10/9/04. 11. However, w.e.f. 1/6/07, when the work contract service was introduced, if the appellant's contracts are covered by the definition of "work contract", as given in Explanation to Section 65 (105) (zzzza) i.e. if the contracts involve transfer of property in goods on which VAT/Sales Tax is leviable, the service tax would be chargeable as work contract service. 12. On the question of limitation, we find that - (a) the appellant had applied for service tax registration on 3/12/04 and for "construction service" and had been issued registration certificate on the same day by the Ju....
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....ued on 21/10/09 invoking extended period under proviso to Section 73 (1) of the Finance Act, 1994. The provisions of proviso to Section 73 (1) of Finance Act, 1994 are in parimateria with the proviso to Section 11A (1) of the Central Excise Act, 1944 and in respect of proviso to Section 11A (1) of Central Excise Act, the Apex Court in a series of judgments in cases of Pushpam Pharmaceuticals Company vs. CCE, Bombay reported in 1995 (78) E.L.T. 401 (S.C.), CCE vs. Chemphar Drugs & Liniments reported in 1989 (40) E.L.T. 276 (S.C.), Nestle India Ltd. vs. CCE, Chandigarh reported in 2009 (235) E.L.T. 577 (S.C.) has held that something positive, other than mere inaction or failure on the part of the manufacturer or conscious or deliberate withho....