Decided on February 13,2015

Mackintosh Burn Ltd. And Ors. Appellant
Commissioner Of Customs, Central Excise And Service Tax Respondents


Dr. D.M. Misra, Member (J) - (1.)THE aforesaid Appeals are filed against respective Orders -in -Original passed by Commissioner of Central Excise, Shillong and Order -in -Appeal passed by Commissioner of Central Excise (Appeals), Guwahati. Since the issues involved in all these Appeals are common, accordingly, these are taken up together for disposal.
(2.)BRIEFLY stated the background facts are that the Ministry of home affairs entered into Memorandum of Understanding (MoU) with govt. agencies viz. M/s. EIL and M/s. NPCC for construction of Border Outposts (BOP). In the said agreements/MoUs, EIL and NPCC were described as executive agencies and for carrying out the said work, the executive agencies were entitled to 10% of the project cost as their charges/fees. The executive agency, in turn, floated tenders and appointed qualified contractors/sub -contractors for execution of the said job of construction of border outpost. The service tax Department, issued demand notices to the executive agencies as well as to the contractors/sub contractors, demanding service tax under the category of 'erection, commissioning or installation service' as defined under Sec. 65(39a) read with Sec. 65(105)(zzd) of the Finance Act, 1994. On adjudication, the demand notices have been confirmed and penalties imposed on the respective appellants by the adjudicating authority and in one case the appeal carried out by the appellant against the order of additional Commissioner which was rejected by the ld. Commissioner (Appeals). Aggrieved by these orders the appellants preferred the present appeals before this forum. For understanding the issues, instead of narrating the facts of each of the Appeals, it would suffice to discuss the facts mentioned in Appeal No. ST/A/366/12 filed by M/s. Mackintosh Burn Ltd. & M/s. NPCC.
M/s. Mackintosh Burn Ltd., during the relevant period i.e. 2007 -08 to 2009 -10, were issued work Order by M/s. National Project Construction Corporation Ltd., Silchar (NPCC Ltd.), for construction of Border Out Posts (BOP) for Border Security Force (BSF) and road along Indo -Bangladesh Border under packages - MZ -18, MZ -19, MZ -L3 and MZ -L5 in the State of Mizoram. Broadly, under the work Orders, the contractors were required to supply tools, plants etc. as required for the said Project; besides the job comprises of clearing of jungles, vegetation, grasses, trees, removal of rubbish, preparation of sub -base by excavating earth, dressing of camber consolidated with road -roller, providing (supplying) and fixing of security fencing with posts and barbed wire, by supplying cement, sand, grit -bricks and by carrying out the foundation work, pavement work, centering, shuttering, providing (supplying) and fixing of gate etc.

(3.)SHOW cause -cum -demand notice for Rs. 45,34,434/ - towards Service Tax was issued on 13.06.2011 for the period, 2007 -08 to 2009 -10, alleging that the activity of construction of border -fencing with road along Indo -Bangladesh Border, is chargeable to service tax under the category 'Erection, Commissioning or Installation Services', as defined under section (39a) read with Section 65(105)(zzd) of the Finance Act, 1994. The ld. Commissioner has confirmed the demand and imposed penalty equivalent to the service tax, under Section 78 of the Finance Act, 1994, and also penalty of Rs. 5,000/ - under Section 77 of the said Act.

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