Dr. Chittaranjan Satapathy, Technical Member. - Heard both sides.

2. The issue involved in this case is whether the appellants are liable to pay service tax in respect of air catering unit constructed by them at the Bangalore International Airport. The appellants have taken various pleas in their appeal before us; (i) the impugned service rendered by the appellants was in the nature of works contract which cannot be subjected to service tax prior to introduction of service tax in respect of the same from 1-6-2007, (ii) the service rendered was in the nature of passenger facility and hence it is excluded from 'Commercial or Industrial Construction Service', (iii) the service rendered is in respect of aerodrome and on that ground also it is excluded from the scope of commercial or industrial construction service, (iv) the demand is also partly time-barred as there was no suppression of facts etc. and the show-cause notice has been issued beyond the normal period of time.

3. We note that the contentions made by the appellants have been examined in detail by the adjudicating Commissioner and it has been held by him that the appellants are liable to pay service tax applicable to 'commercial or industrial construction service'. He has also held that longer period of limitation is applicable in this case and accordingly he has confirmed the service tax demand of Rs. 99,55,124 along with demand of interest and has imposed a penalty of equal amount.

4. We have heard the arguments from both sides in respect of the stay petition. We find that the stay petition can be disposed of with reference to the claim of the appellants that the service provided by them is excluded under the category of 'commercial or industrial construction service'.

5. Section 65(25b) of the Finance Act, 1994 defines "commercial or industrial construction service' as under :—

"(a) construction of a new building or a civil structure or a part thereof; or

(b) construction of pipeline or conduit; or

(c) completion and finishing services such as glazing, plastering, painting, floor and wall timing, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications and fitting and other similar services in relation to building or civil structure; or

(d) repair, alteration, renovation or restoration of, or similar services in relation to building or civil structure, pipeline or conduit.

Which is —

(i) used, or to be used, primarily for; or

(ii) occupied, or to be occupied, primarily with; or

(iii) engaged, or to be engaged, primarily in;

Commerce or industry or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams."

6. The above definition excludes services in respect of airports. In this connection the following definitions are relevant :—

Section 65(3c) of the Finance Act, 1994 provides that the term 'airport' shall the meaning assigned to it in clause (b) of the section 2 of the Airports Authority of India Act, 1994.

Section 2(b) of the Airports Authority of India Act, 1994 defines 'airport' as under —

"'airport' means a landing and taking off area for aircrafts, usually with runways and aircraft maintenance and passenger facilities and includes aerodrome as defined in clause (2) of section 2 of the Aircraft Act, 1934"

Section 2(2) of the Aircraft Act, 1934 defines 'aerodrome' as under :—

"Aerodrome means any definite or limited ground or water area intended to be used, either wholly or in part, for the landing or departure of aircraft, and includes all buildings, sheds, vessels, piers and other structures thereon or appertaining thereto."

7. The definition of 'airport' as given above means a landing and taking off area with passenger facilities. However, it is doubtful as to whether the air catering unit constructed by the appellants can be called a passenger facility as the same is not u