Decided on April 30,2015

P.B. Rathod Appellant


P.S.PRUTHI,J - (1.)THIS appeal is filed against Order -in -Appeal Nos. AKP/239 -240/NSK/10, dated 18 -8 -2010 passed by the Commissioner of Central Excise & Customs (Appeals), Nashik confirming the demand of Rs. 14,73,190/ -, interest under Section 75, penalty of Rs. 2,00,000/ -under Section 77 and penalty of Rs. 14,73,190/ - under Section 78 with option to reduce the penalty to 25% of this amount if the duty, interest and reduced penalty are paid within 30 days of the communication of the Order -in -Appeal.
(2.)The appellant was providing "Completion and Finishing Services" under the categories of Commercial or Industrial Construction Service and Construction of Complex Service. They provided services of painting of residential quarters to Nashik Thermal Power Station (NTPS in short), plant and machinery of NTPS, properties of railways such as their institute building, auditorium, hostel, sports complex and the State Transport Terminal (Bus stand) etc. They also provided services of laying pipeline for disposal of sewerage as per work order given to them by the Nashik Municipal Corporation. Demand of duty on the services provided was confirmed by the Commissioner (Appeals).
Heard both sides and considered the submissions.

(3.)LEARNED counsel appearing for the appellant contended that the residential quarters of NTPS do not come under the category of Construction of Complex Service under Section 65(30a). Regarding painting of properties belonging to railways it was argued that Commercial or Industrial Construction Services excludes services provided in respect of railways under Section 65(25b). Similarly painting services provided to State Transport Bus Stand is excluded from Section 65(25b). Further, the painting of plant and machinery of NTPS is not an activity on a structure which is used primarily for commerce or industry and thus excluded from the purview of Section 65(25b). Regarding the last service which relates to laying of underground sewerage pipe, it is contended that the original adjudicating authority dropped the demand of Rs. 72,641/ - on the basis of Board's Circular No. , dated 17 -9 -2004 which exempts construction which are carried out for the purposes proving civic amenities such as sanitation. Original authority had considered this activity falling under Commercial or Industrial Construction Service but the appellate authority classified the service under 'Erection, Installation or Commissioning Service' and therefore went beyond the allegations in the show cause notice. Learned counsel relied on the judgment of the Tribunal in the case of Nagarjuna Construction Company v. CCE, Hyderabad - : 2009 -TIOL -1156 -CESTAT -Bang : 2010 (17) S.T.R. 44 (Tri. -Bang.) in which it was held that laying of pipelines for drinking water supply projects run by Gujarat Water Supply and Sewerage Board are not leviable to service tax either under Commercial or Industrial Construction Service or Works Contract Service.

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