ORDER
S.L. Peeran, Member (J)
1. The appellant is required to pre-deposit Rs. 87,54,485/- being the Service Tax along with interest. Llikesum as penalty has also been imposed. The Original Authority had dropped the proceedings demanding Service Tax under the category of ‘Consulting Engineer’ Service. However on review, the Commissioner has confirmed the demands.
2. The appellants relied on the ruling of the Tribunal rendered in the case of M/s. Daelim Industrial Co. Ltd. v. CCE, Vadodara and M/s. L and T Ltd. v. CCE, Cochin . The erection and commissioning activity was brought under Service Tax during the year 2003. However, the present demands pertain to period 7.7.1997 to 10.10.1997, therefore, appellants contested the issue and relied on the above two rulings. The Commissioner has not accepted the rulings and has relied on the Apex Court judgment rendered in the case of BSL v. UOI 2006 (2) STR 167.
3. The learned Consultant distinguishes the judgment and submits that the issue in BSL pertains to bifurcation of value and it has no relevance to the issue pertaining to applicability of Finance Act pertaining to installation and commissioning. Both the items were not subjected to tax prior to 2003. He submits that the issue is fully covered in their favour.
4. The learned JDR distinguished the Tribunal rulings and submits that the Commissioner’s order is correct and appellants should be put to terms.
5. On a careful consideration, we notice that the Apex Court judgment do not deal with the aspect pertaining to coverage of installation and commissioning activity but it pertains to valuation of composite activity and how the valuation has to be arrived at. During the period 7.7.1997 to 10.10.1997, the installation and commissioning was not subjected to Service Tax. This has been dealt with in the cited judgments relied by the learned Consultant cited supra. Prima facie, the issue is covered in their favour, therefore, the stay application is allowed granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. As the amount is huge and full waiver has been granted, the appeal to be heard out of turn on 10th October 2007.
(Pronounced and dictated in open Court)