TaxTMI 
TaxTMI 
2018 (10) TMI 218
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....,66,803/- and rest of the amount has been dropped by the adjudicating authority. The appellant is aggrieved of the amount confirmed and resultantly has filed the present appeal. 2. We have heard Mr. Vipin Garg & Ms. Rinki Arora, ld. Advocates for the appellant and Mr. Vivek Pandey, ld. DR for the Department. 3. It is submitted on behalf of the appellant that the appellant is not liable to pay any Service Tax on the basis of the CBEC Circular No. 123/5/2010-TRU dated 24th May, 2010. The said Circular exempts all the activities of the appellant from the tax liability. It is submitted that the appellant has provided all the work contracts to the adjudicating authority below. Still the order has committed an error for not extending the benefit of the said Notifications to the impugned services. It is also submitted that the adjudicating authority has appreciated that the nature of services rendered by the appellant are that of work contract services still the benefit of Composition Scheme as well as the cum-tax benefit has wrongly been denied. Finally, it is submitted that the show cause notice for the period w.e.f. 2005-06 to 2009 but issued on 20th October, 2010 is beyond the norm....
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....demand thereof has been dropped. However, following are the categories of these year-wise work-orders, which are held taxable by the authority:- Sl.No. Broad Description of the work as per W.O. 1. Providing & Fixing of Street Lights on PCC Pole or otherwise i.e. work in relation to lighting on public utility road. 2. Electrification and Lighting 3. Shifting of overhead cables/ wires and laying of cables under or alongside roads for........... 7. Since the demand has been dropped giving the benefit of the Circular No.123/5/2010 dated 24th May, 2010, it is relevant to look into the same. It reads as under:- Subject: Applicability of service tax on laying of cables under or alongside roads and similar activities - clarification regarding. Disputes have arisen in some parts of the country regarding applicability of service tax on certain activities such as shifting of overhead cables to underground on account of renovation/widening of roads; laying of electrical cables under or alongside roads/railway tracks; between grids/sub-stations/transformers the distribution points of residential or commercial complexes and such activities as electrification of railways, installatio....
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....ell. (iv) 'site formation and clearance, excavation, earthmoving and demolition services' are attracted only if the service providers provide these services independently and not as part of a complete work such as laying of cables under the road 3. The taxable status of various activities, on which disputes have arisen Based on the foregoing, the following would be the tax status of some of the activities in respect of which disputes have arisen,- S.No. Activity Status 1. Shifting of overhead cables/wires for any reasons such as widening/renovation of roads Not a taxable service under any clause of sub-section (105) of section 65 of the Finance Act, 1994 2. Laying of cables under or alongside roads Not a taxable service under any clause of sub-section (105) of section 65 of the Finance Act, 1994 3. Laying of electric cables between grids/sub-stations/transformer stations en route Not a taxable service under any clause of sub-section (105) of section 65 of the Finance Act, 1994 4. Installation of transformer/ sub-stations undertaken independently Taxable service, namely Erection, commissioning or installation services [section 65 (105) (zzd)]. 5. Laying of ele....
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....y confirmed the said demand. The order to that extent is set aside. Resultantly, a minor demand qua entry No. 25 & 26 for the year 2006-07 and for entry No.47 for 2009-10 in the chart prepared by adjudicating authority below is held to have wrongly confirmed by the adjudicating authority, the same is hereby set aside. Rest of the adjudication while confirming demands and even while dropping the demand is found to have no infirmity. 9. Now coming to the benefit of Composition Scheme and cum-tax benefit, the work orders are perused. It becomes clear that these are not the work orders for the services simplicitor or for sale of goods simplicitor but involves both the elements in such a manner that the contracts are indivisible. As a result, the contracts are opined to fall under the category of works contract services. It has also been observed that the introduction of work contract service came w.e.f. 1st June, 2007. Even the adjudicating authority has acknowledged the activity of the appellant to be covered under para (a) & (e) of sub clause (ii) of the definition of works contract service. But despite the said findings, the Commissioner is opined to have committed an error while ....
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....ed to one specie of contract to provide for labour and services alone. Parliament had all genre of works contract in view when clause (29-A) was inserted in Article 366." 10. As a result, the service which is in the nature of Composite Work Contract cannot be put to tax before 1st June, 2007. Hence, the entire demand confirmed by the adjudicating authority for the period prior to 2007 is held to have wrongly confirmed. The same is hereby set aside. However, for the subsequent period, since the activity is work contract service and there is a Composition Scheme as per the provisions of Composition Rules issued under Notification 32/2007 dated 22nd May, 2007 vide which an option is available to pay Service Tax at the rate of 2 % upto 1st of March, 2008 and at the rate of 4 % w.e.f. 1st of March, 2008 on the gross amount charged for the works contract instead of paying the regular duty. The appellant is entitled to opt for Composition Scheme. The said benefit is denied by the adjudicating authority below merely on the ground that the appellant has failed to exercise the said option prior to the payment of Service Tax in respect of the respected works contract, but to our opinion, tha....