IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO.

I Application No. ST/S/39/10 in Appeal No. ST/05/10

(Arising out of Order-in-Appeal No. SR/221/NGP/2009 dated 6.10.2009 passed by the Commissioner of Central Excise (Appeals), Nagpur). For approval and signature: Honble Shri P.G. Chacko, Member (Judicial) Honble Shri Sahab Singh, Member (Technical) ====================================================== 1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Whether their Lordships wish to see the fair copy of the order? : Yes

3. 4.

Seen

Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Sanjay Tah Engg. & Contractors Appellant Vs. Commissioner of Central Excise, Nagpur Respondent Appearance: Shri S. Jai Kumar Advocate for Appellant Shri Manish Mohan SDR for Respondent CORAM: SHRI P.G. CHACKO, MEMBER (JUDICIAL) SHRI SAHAB SINGH, MEMBER (TECHNICAL)

Date of Hearing: 24.06.2011 Date of Decision: 24.06.2011 ORDER NO. Per: P.G. Chacko This application seeks waiver of pre-deposit and stay of recovery in respect of Service Tax and penalty amounts. After examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, we take up the appeal itself for disposal. 2. The appeal filed by the assessee is against the order of the Commissioner WZB/MUM/2011

(Appeals) dismissing their appeal (filed against an adverse order of the original authority) on the sole ground of non-compliance with Section 35F of the Central Excise Act. In adjudication of a show-cause notice, the original authority had demanded Service Tax of over Rs.16 lakhs from the assessee and imposed penalty on them. The demand of tax was for the period 2003-08 and on the ground that the assessee had provided Erection, Commissioning or Installation services to Bharat Sanchar Nigam Ltd. (BSNL) without paying Service Tax thereon. In the appeal filed against the original authoritys order, the assessee also filed an application for waiver of pre-deposit of the adjudged dues. The appellate authority disposed of this application by an order directing the assessee to pre-deposit the entire amount of Service Tax, which was not deposited. After expiry of the time granted for pre-deposit, the appellate authority dismissed the assessees appeal on the aforesaid ground. 3. After examining the records and hearing both sides, we find that, during the telephone cables, cable jointing, pillar constructions, DP fitting

material period, the appellant had provided services for trenching and laying underground 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 Erection, Commissioning or Installation as defined under Clause 39(a) of Section 65 of the Finance Act, 1994 and hence liable to Service Tax under Section 65(105)(zzd) of the said Act. According to the lower appellate authority, the assessee had no prima facie case on merits.

Hence the direction for pre-deposit and upon non-compliance by the party, dismissal of their appeal. 4. Today, learned Counsel for the appellant claims prima facie case on the strength

of both Boards Circular No. 123/5/2010-TRU dated 24.5.2010 and Hon'ble High Courts judgment in Commissioner of Central Excise, Chandigarh Vs. Rajeev Electrical Works 2010 (18) STR 205 (P&H). In the Boards Circular, it was clarified inter alia that laying of cables under or alongside roads did not constitute any taxable service under Section 65(105) of the Finance Act, 1994. The Hon'ble High Court in the case of Rajeev Electrical Works (supra) had held that laying of pipes in wall/roof/floor for crossing of wires, fixing junction box, MS box, wooden box, fixing cable trays to lay cables, digging earth to lay the cables and digging earth pits for earthing of equipments did not amount to installation of plant, commissioning of machinery/ equipments etc. We have heard learned SDR also, who has made a feeble attempt to distinguish the cited case of Rajeev Electrical Works (supra) and also the case examined by the Board in the cited Circular. 5. We have found prima facie case for the appellant 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 Boards Circular and Hon'ble High Courts decision, among other things, be considered by the adjudicating authority. 7. Stay application also stands disposed of.

(Dictated and pronounced in Court) (Sahab Singh) Member (Technical) Vks/ (P.G. Chacko) Member (Judicial)