S. S. GARG :The present appeal is directed against impugned order dated 27.03.2018 passed by the Commissioner (Appeals), CGST, Ludhiana, whereby the learned Commissioner (Appeals) has rejected the appeal of the appellant by upholding the Order-in-Original.

2. Briefly stated facts of the present case are that the appellant was a proprietorship concern and was registered with the service tax department. The department entertained a view that the appellant had provided taxable service namely “Commercial or Industrial Construction service” specified under Section 65(105)(zzq) of the Finance Act, 1994 without payment of service tax and without following the procedures as laid down under Sections 68, 69 & 70 of the Finance Act, read with Rules 5, 6 & 7 of Service Tax Rules, 1994. An investigation was carried out against the appellant and appellant was summoned and its statement was recorded. The department also sought information regarding the details of payment made to the appellant, copies of word orders, contracts from M/s IOCL and other oil companies namely M/s BPCL & M/s HPCL, and after getting information from the oil companies, the department formed the view that the appellant has provided taxable services under the category of “Commercial or Industrial Construction service” during the relevant period and is liable to pay service tax amounting to Rs.18,21,259/-. On these allegations, a show cause notice was issued to the appellant proposing the demand of service tax along with interest and penalties. The appellant contested the allegations of show cause notice by filing detailed reply. After following the due process, the Adjudicating Authority vide the Order-in-Original dated 31.03.2016, gave the benefit of cum-tax but rejected other submissions and confirmed the service tax demand of Rs.13,86,181/- under Section 73 of the Finance Act along with interest under Section 75 of the Act; an equal penalty under Section 78 of the Act and a penalty of Rs.10,000/- under Section 77 were also imposed. Aggrieved by the said Order- in-Original, the appellant filed appeal before the Commissioner (Appeals), who vide the impugned Order-in-Appeal, has rejected the appeal of the appellant and upheld the Order-in-Original. Hence, the present appeal.

3. Heard both the parties and perused the material on record.

4. The learned Counsel for the appellant submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and without ascertaining as to what kind of services were rendered by the appellant to the oil companies.

4.1 The learned Counsel further submits that the show cause notice has been issued on the basis of presumption that the appellant has rendered services of ‘commercial construction service’, whereas it is factually incorrect, in fact the appellant has mainly fitted oil tanks in pits. The appellant digs big pits and fits oil tanks in the said pits. In certain cases, the appellant has mainly supplied materials and not rendered services.

4.2 The learned Counsel further submits that the nature of work carried out by the appellant does not fall under the category of ‘commercial construction service’. He further submits that as per the contracts, copies of which were also enclosed with the appeal, it is evident that the appellant has not provided services which would termed as ‘commercial construction service’. He further submits that the department only collected the information from the oil companies regarding payment made to the appellant but did not bother to ascertain the exact nature of service.

4.3 The learned Counsel further submits that even if presumed that the appellant has provided construction services, even then the service tax can be demanded under the category of ‘Works Contract Services’ and not under ‘Construction Services’, because the appellant has entered into a composite contract in which both services and sale of goods are involved. He further submits