TaxTMI 
TaxTMI 
2022 (4) TMI 878
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.... Service Tax Department under the categories of Goods Transport Services, Commercial or Industrial Construction Services, Manpower Recruitment Agency Services and Maintenance and Repair Service. During the period in dispute, the assessee has undertaken various construction services, e.g. construction and maintenance of road, construction services for railway projects, construction of hospital buildings, etc. 2.2 The Ld. Commissioner has dropped the demand of Rs. 23,99,730/- (out of the total demand of Rs. 1,17,08,022/-) in respect of construction activities undertaken for construction of drain for Durgapur Municipal Corporation, construction of road, repair and maintenance of road for the period upto 15.06.2005, improvement of level crossing for railways for the period upto 15.06.2005, repair and maintenance of ITI boundary wall for schools by holding them to be used for non-commercial purpose. Against the demand dropped by the Ld. Commissioner as above, the Revenue is in appeal before us. 2.3 The Ld. Commissioner has upheld the demand of Rs. 93,08,292/- on cleaning services, repair and maintenance services of road w.e.f. 16.06.2005, improvement of level crossing for railways for....
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....rvice w.e.f. 01.06.2007, which taxing entry has not been invoked, the entire demand is liable to be set aside on this ground alone. He relied on the decision in the case of CCE vs. Larsen & Tourbo 2015 (39) STR 913 (SC) as also followed by the Tribunal is various cases. (vi) There is no case of fraud or suppression and hence, the larger period of limitation is not available. Since the dispute in the instant case relate to proper classification of service and interpretation of statutes, the extended period of limitation is not available as has been held in the case of Calcutta Industrial Supply Corporation vs. CST 2019 (31) GSTL 487 (Tri-Kol.) and in the case of Continental Foundation Jt Venture vs. CCE 2007 (216) ELT 177 (SC). 5. The Ld. Departmental Representative submitted that the Ld. Commissioner erred in dropping the demand in respect of activities undertaken for construction of road. The said activities were for 'black topping of road' which were not construction activities but maintenance or repair service and hence, liable to tax. He also reiterated the observations made by the Ld. Commissioner in respect of portion of activities where the demand has been confirmed and su....
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....me Court in the case of Larsen & Tourbo (Supra) has held that works contract cannot be taxed under the category of Commercial Construction Service or Erection commissioning Installation Service or Maintenance or repair service. In the case of PES Engineers Pvt Ltd vs. CCE & ST, Hyderabad - II [2017 (7) GSTL 57 (Tri- Hyd.)] the issue involved for demand pertaining to the period January 2005 to March 2012 under Erection Commissioning and Installation Service. The Tribunal has held that the services were classifiable under "Works Contract Service" and not "Erection Commissioning and Installation Service", demand could not be sustained. The relevant paras of the Tribunal order is as under : "..5.8 Viewed in this light and also taking note of the fact that the work has been performed by the assessee on specific sub-contract agreements for specific works detailed therein, the nature of work cannot, but, be otherwise than "Works Contract" and definitely not under "ECIS" as perceived by the department for the period upto March, 2010. The nature and scope of the activity performed by the assessee also answers to the scope of works contract defined in Section 65(zzzza) of Finance Act, 199....
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....es issued earlier as ECIS, is suddenly proposed to be covered under the category of "Works Contract Service". 5.15 From these discussions, we find that the impugned activity of the assessee was nothing but "works contract service" in respect of tunnels/dams. We further find that since the works contract was in respect of tunnels for dams/power projects, the same would then be excluded from taxability thereunder in view of the exclusion in Section 65(105)(zzzza) of Finance Act, 1994. 5.16 In the event, all the demands of differential service tax liability confirmed in the proceedings related to the appeals ST/981/2009, ST/1248/2010 and ST/26552/2013 cannot, therefore, sustain and will have to be set aside, which we hereby do. For these very same reasons, the appeals ST/981/2009; ST/1248/2010 and ST/26552/2013 filed by assessee will succeed and they are therefore allowed with consequential benefits if any. 5.17 When there cannot be any taxability on the impugned activity, the appeal No. ST/962/2009 filed by Revenue against reduction of tax liability by the adjudicating Commissioner will also fail and hence the same is dismissed. 5.18 Coming to the Appeal No. ST/412/2007 filed....