2018 (9) TMI 91

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....so undertaking embedding of interlocking bricks at the site of the customers for laying of internal roads and approach roads to the compound of the building on labour basis as per Section 65(105)(zzq). The Department alleged that the appellants are providing construction services during the period September 2004 to November 2005. A show-cause notice dated 31.3.2006 which was confirmed by the Assistant Commissioner vide Order-in-Original No.71/2006-07 dated 14.2.2005 and OIO No.17/2008-ST JD dated 28.5.2008. The Commissioner (A) vide Order-in-Appeal No.14/2008-CE dated 28.3.2006 and OIA No.151/2009 dated 21.4.2009 has upheld the Orders-in-Original and confirmed the service tax with interest; however, he set aside the penalties imposed under ....

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....al construction service' and also construction of residential building is beyond the scope of show-cause notice inasmuch as the show-cause notice only referred to a category of 'Commercial or Industrial Service'. 3. The learned counsel for the appellant has submitted that the activity of laying of internal roads and approach roads to the compound of the building was undertaken by the appellant as a separate and exclusive activity and not as part of the contract for construction of a factory / building. Therefore, they are specifically covered under the exclusive clause of definition of 'Commercial or Industrial Construction Service'. The CBEC vide Circular No.B1/6/2005-TRU dated 27.2.2005 clarified that if contract for construction is a ....

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....oads." 5.1 From the above, it is clear that construction of roads if undertaken as a part of contract for construction of a commercial complex or industrial building, is taxable. In the instant case, the appellants have not undertaken any such activity and their contract with their buyers was limited to laying of interlocking paver blocks and the approach roads. Therefore, the findings of the impugned order appear to be yond the scope of provisions of law and the Circular issued. We also find that the Tribunal in the cases cited above has taken the same view. The Tribunal in the case of Shilpa Construction Pvt. Ltd. (supra) in para 7 has held that: "In this connection we find that the Board's Circular No. B1/6/2005-TRU dated 27-....