2018 (11) TMI 744

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....under the above category of erection, commissioning and installation. The show cause notice has been adjudicated by the learned Commissioner vide his order dated 16/04/2014 wherein it has been held that assessee was primarily engaged in erection, commissioning and installation services and commercial and industrial construction services by making various petrol pumps clubbed with all the necessary infrastructure as including the dispensing machinery etc. and accordingly all the allegations as mentioned in the show cause notice including the demand of service tax as well as penalty under Section 78 and 76 have been confirmed by the learned Commissioner. The learned Advocate appearing for the appellant have contended that the Adjudicating Authority has failed to consider the appellants contract which have been entered by him with M/s Hindustan Petroleum Corporation Limited. It is argued that all the contracts of the appellant which they have entered with M/s HPCL are for construction of petrol pump buildings, labelling, site preparation and construction of road on the drive-in way of the petrol pumps. It has been contended that they are already discharging their service tax liability....

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....site contracts i.e. being inclusive of material and labour charges, same are covered by the Hon'ble Supreme Court's judgment in the case of CCE & CUS, Kerala vs. Larsen & Toubro Ltd. - 2015 (39) S.T.R. 913 (S.C.), wherein it has been held that before the work contract service came to enactment since 01/06/2007 the composite contracts are not leviable to service tax since no work contract service was in existence at that relevant time. Since, in their case, the part of the demand is for period from April 2005 to 31/05/2007 and therefore as per Hon'ble Supreme Court judgment their activity is not under the scope of the service tax. It has therefore been argued that no service tax liability arise on them for period prior to 01/06/2007. 3. With regard to the demand for that period from 01/06/2007 to April 2008 it has been added that the activities undertaken by them are primarily for construction of road on the drive in way which is an exempted service as per the provisions of the construction of commercial or industrial construction service. The remaining part of the service value which they have received is primarily towards construction service on which they have already discharg....

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....g or water proofing, or (e) lift and escalator, fire escape staircases or travelators or (f) such other similar services. 9. On perusal of the above definitions primarily covers the erection and commissioning or installation of plant, machinery and equipment. It has been the claim of the appellant that the services provided by them are by no stretch of imagination be classified under the erection, commissioning or installation as the work undertaken by them for M/s Hindustan Petroleum Corporation Ltd. are primarily of a nature of construction of the building, site clearance and site preparations, excavation, earth filling, gravel filling, road construction, construction of compound wall and construction of canopy for the petrol pumps. 10. It will be appropriate to verify the claim of the appellant to have a look at the work orders given to them by their main client namely M/s HPCL. 11. A perusal of above purchase order-cum-work order, we feel that the assertion of the appellant that the activities undertaken by them are more akin to that of commercial construction, commercial or industrial construction service as provided under Section 65 (25b). It is als....

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....inery or equipment. As such they cannot be held as commissioning agent under the said category so as to levy the service tax. 4. We find that while dealing with the said plea of the appellant, the adjudicating authority observed as under :- "11 In this regard, I find that in order to construct a new petrol pump, the main work is civil construction work and erection of FRP tanks etc., and after all these constructions and erection of FRP tanks and other tanks, as conducted/carried out by the assessee in the instant case, there remains no extra work except putting the readymade pump machine on these structures, to complete the commissioning of petrol pumps. The assessee have undertaken all the work required for pre-commissioning of petrol pumps, as evident from their bills raised by them to M/s. Reliance Engineering Associates Pvt. Ltd., Jaipur, which is the preliminary stage of the "Commissioning and installation of plant, machinery and equipments" 5. As is clear from the above, there is a finding by the adjudicating authority that the appellant has undertaken the work required for pre-commissioning of petrol pump. The definition of 'commissioning and installation' re....

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....•à¥‹à¤ª मीनार, डिस्ट्रिक्ट सेन्टर, लक्ष्मी नगर, दिल्ली-110082 फोन : (कार्या.) 22408100 6-7th Floor, North Tower, Scope Minar, District Centre, Laxmi Nagar, Delhi-110092 Tel.: (0) 22408100 PURCHASE ORDER ORIGINAL 46 TO : BAINADA CONSTRUCTION COMPANY (28026055 PLOT-NO. 23 PO Number : JAI KISHAN COLONY TONK PHATAK JAIPUR Rajasthan India PO Date LOI Reference Tender Number 8000148-OS-11100 : 3/10/2006 :PUR:NZ:MJ DT.03.10.06 : 6000047 HB 11100 C.O.PUR:MJ DT21.09.06 :6000025 HS 11105 Vendor's Offer Reference: PR Number Title :SOR-CIVIL, JAIPUR RO Please supply the following items / service, as per the terms and conditions. mentioned below and in attachments: Deliver to JAIPUR RETAIL RO,Tel Bhavan, Sahkar Marg,Jyoti Nagar, Jaipur, Jaipur, 302005, Rajasthan, India, Order Line Tender Item Number Line No. Item Number Description Quantity Or....

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....414.000 416.00 SAND FILLING Cubic 180.892 Cubic Meters Meters INR 415.000 417.00 EARTH FILLING Cubic 66.180 Cubic Meters Meters INR 416.000 418.00 MURRUM FILLING Cubic 158.832 Cubic Meters Meters INR 417.000 419.00 GRAVEL FILLING Cubic 198.540 Cubic Meters Meters INR 418.000 420.00 PCC WORK 419.000 421.00 PCC 1:1.5:3 using 20 mm and Cubic Meters 2,073.640 Cubic Meters Page No: Cont. on next page 38 of 43 6000148-OS-11100 For Bainada Construction Co. денги Proprietor Document 3 HP (भारत सरकार का उपक्रम) रजिस्टर्ड ऑफिस 17, जमशेदजी टाटा रोड, मुंबई 400 020 HINDUSTAN PETROLEUM CORPORATION LIMITED (A GOVERNMENT OF INDIA ENTERPRISE) REGISTERED OFFICE: 17, JAMSHEDJI TATA ROAD, MUMBAI 400 020 6–7 वीं मंजिल नाà¤....