2010 (7) TMI 335 - AT - Service Tax

Appellant is engaged in the manufacture of various electrical equipments such as transformers, circuit breakers, machinery and parts thereof - Appellant also executes turnkey contracts for supply, erection, installation and commissioning of power transmission and distribution systems - Commissioner of Central Excise and Service tax stated that appellant is liable to pay service tax on the taxable services provided - accordingly confirm the demand of service tax - interest at the applicable rate as per the provisions of Section 75 of the Finance Act, 1994 - imposed penalty under section 78 - Revenue submission that in the context of Turnkey and EPC contracts, the contract would typically comprise of design, engineering, procurement and construction of a facility and provide for start-up procedures, performance tests, creation of operating manuals and training of personnel which would definitely apply only to composite contract for supply of goods and services - Held that - service rendered by the Company had not been included under the definition of consulting engineer prior to 2006 as it stood under Section 65(13) - service rendered by the assessee - Company during relevant period cannot be brought under the category of consulting engineer - assessee falls under Section 65(105)(zzzza) Explanation (a) and (e) - under the definition of works contract, but the revenue has no power to call upon the assessee to pay service tax, interest and penalty therein, since the provisions of law has come into force with effect from 1-6-2007 - disposed off the appeal on the question of the same being covered under the category of works contract - appeal is dismissed

Summary

Issues Involved:
1. Classification of the contract as "works contract" or "erection, commissioning, or installation services".
2. Applicability of service tax on the contract prior to 1-6-2007.
3. Validity of the penalties and interest imposed.

Detailed Analysis:

1. Classification of the Contract:
The core issue was whether the contract No. C/5530/S-656-8-CAIII/978 constituted an independent works contract or should be classified under "erection, commissioning, and installation services" as contended by the revenue. The appellant argued that the contract was a works contract involving both material and labor, which was not taxable under service tax prior to 1-6-2007. They supported their argument by presenting the trifurcated nature of the contract, the intention of the parties to treat it as a single contract, and the tax treatment under the A.P. General Sales Tax Act. The tribunal reviewed the contract documents and found that the contract was interlinked with other contracts and was treated as a works contract by both the appellant and the Power Grid Corporation of India Ltd. (PGCIL). The tribunal concluded that the contract satisfied the definition of a works contract as per Section 65(105)(zzzza) of the Finance Act, 1994.

2. Applicability of Service Tax:
The tribunal noted that service tax on works contracts was introduced only from 1-6-2007. The CBEC Circular No. B1/16/2007-TRU dated 22-5-2007 clarified that contracts treated as works contracts for VAT/sales tax purposes should also be treated as works contracts for service tax purposes. The tribunal found that the contract in question was consistently treated as a works contract by the appellant and PGCIL, and tax was deducted accordingly. Therefore, the tribunal held that the service tax liability did not arise before 1-6-2007.

3. Validity of Penalties and Interest:
Given the tribunal's conclusion that the contract was a works contract and not liable to service tax before 1-6-2007, the penalties and interest imposed under Sections 75, 76, and 78 of the Finance Act, 1994, were also set aside. The tribunal emphasized that the revenue's case was not sustainable as the contract was correctly classified as a works contract, exempt from service tax during the relevant period.

Conclusion:
The tribunal allowed the appeal, setting aside the impugned order and granting consequential relief to the appellant. The judgment emphasized that the contract in question was a works contract, not liable to service tax before 1-6-2007, and the penalties and interest imposed were invalid.