CHAITANYA ENTERPRISES Vs. COMMISSIONER OF C. EX., HYDERABAD

JUDGEMENT

(1.) THIS stay petition is filed for waiver of pre -deposit of an amount of Rs. 90,70,559/ - confirmed as Service Tax liability, interest thereof and penalty under Section 78 of the Finance Act, 1994 on the ground that the appellant has not discharged service tax liability under the category of erection, commissioning or installation services when they have rendered the service of laying of optical fibre cables for BSNL and other telecom service providers.

(2.) LEARNED counsel would bring to our notice that Board vide Circular No. 123/5/2010 -TRU, dated 24 -5 -2010 has specifically at Sl. No. 2 clarified that the activity of laying of cables is not a taxable service under sub -section (105) of Section 65 of the Finance Act, 1994. He would also rely upon the decision of the Coordinate Bench of the Tribunal in the case of Commissioner of Central Excise and Service Tax, Bhopal v. Sanjeev Kumar Jain [2013 -TIOL -833 -CESTAT -DEL = 2014 (33) S.T.R. 312 (T)] and Nicco Corporation Ltd. v. Commissioner of Service Tax, Kolkata [2012 -TIOL -190 -CESTAT -KOL = 2012 (26) S.T.R. 354 (T) = 2012 (279) E.L.T. 567 (T)].

(3.) LEARNED DR on the other hand reiterates the finding of the lower authorities. 2. On a careful consideration of the submissions made by both sides, we find that it is not in dispute that the appellant is laying optical fibre cables for BSNL and other telecom service providers. The appellant has claimed that this activity does not amount to rendering of any service but has also paid Service Tax claiming the benefit of Notification No. 1/2006 -S.T. after availing the benefit of abatement of 67%. Be that as it may, we find that C.B.E. and C. Circular dated 24 -5 -2010 clarifies the issue which is in favour of the assessee. On considering the circular, this Tribunal in the case of Nicco Corporation Ltd. (supra) and in the case of Sanjeev Kumar Jain (supra) have taken a view which is in favour of the assessee. 3. We do not find any reason to deviate from the said view, at this juncture. In view of the foregoing, we find that the appellant has made out a strong prima facie case for waiver of the pre -deposit of the amount involved. Application for waiver of pre -deposit of the amount involved is allowed and recovery thereof stayed till the disposal of the appeal. (Order dictated and pronounced in open Court)