2015 (10) TMI 2001

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.... liability of the appellant under the category of Commercial or Industrial Construction Services. The appellant is undertaking the activity of laying of 'Optical Fiber Cables' for various telecom service providers. It is the case of the Revenue that such activity is taxable, while it is the case of the appellant that CBEC vide circular no. 123/5/2010-TRU dated 24/05/2010 has clarified that laying of cables under or alongside the roads not is a Taxable Service under any class of sub section (105) of Section 65 of the Finance Act 1994. 4. We find that said circular is clearly applicable as the case in hand and the adjudicating authority should have followed the said circular and dropped the proceedings initiated by the show cause notice wh....

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....ount of Service Tax, which was not deposited. After expiry of the time granted for pre-deposit, the appellate authority dismissed the assessee's appeal on the aforesaid ground. 3. After examining the records and hearing both sides, we find that, during the material period, the appellant had provided services for trenching and laying underground telephone cables, cable jointing, pillar constructions, DP fitting excavation, recoveries of cable, coiling and de-coiling of cables etc. to BSNL, Bhandara under a contract covering the said period but did not pay Service Tax on the said activities as, according to them, the activities did not amount to any taxable service. According to the Revenue, the above activities amounted to Erect....

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.... in view of the cited Circular and decision. Hence, the appellant need not be asked to make any pre-deposit. Of course, we are not unmindful to the fact that neither the Circular nor the decision was before the learned Additional Commissioner when he took the adverse view. 6. The impugned order is set aside and the appeal is allowed by way of remand to the original authority for de novo adjudication of the dispute in accordance with law after giving the assessee a reasonable opportunity of being heard. Needless to say that the Board's Circular and Hon'ble High Court's decision, among other things, be considered by the adjudicating authority." 5. It can be seen from above reproduced findings of the bench that the issu....