2010 (12) TMI 147 - AT - Service Tax

Demand - On the ground that the appellants have not discharged the service tax liability on Commissioning & Installation services and for the appropriation of the amount already paid by them and for also imposition of penalty and demand of interest - Appellants contested the show-cause notice contending that all the contracts in question are turnkey contracts and therefore not liable for service tax prior to 01/06/2007 - It is seen from the records and undisputed that the contracts entered by the appellants with DMRC were registered with the Sales Tax authorities for billing under DVAT Act and VAT liability has been deducted from the payments made to the appellants and discharged to the authorities - After considering the contract entered into between the assessee and its employer the case of the assessee falls under Section 65(105)(zzzza) Explanation (a) and (e). Even though the assessees case falls 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 Appeal was allowed

Issues Involved:
1. Classification of contracts as works contracts or commissioning, erection, and installation services.
2. Applicability of service tax prior to 01/06/2007.
3. Vivisection of contracts for service tax purposes.
4. Eligibility for exemptions under Notification No.12/2003-ST.
5. Invocation of extended period of limitation for demand.

Detailed Analysis:

1. Classification of Contracts as Works Contracts or Commissioning, Erection, and Installation Services:
The appellants entered into five contracts with DMRC for the design, manufacture, supply, installation, testing, and commissioning of electrical, hydraulic, and fire systems. The contracts included both supply and service elements, and the appellants contended that these were turnkey contracts, thus falling under the category of works contracts, which were not taxable prior to 01/06/2007. The Adjudicating Authority disagreed, holding that the contracts could be vivisected to separate the supply and service components, and thus taxed under commissioning and installation services.

2. Applicability of Service Tax Prior to 01/06/2007:
The appellants argued that the contracts should be classified as works contracts, which were only taxable from 01/06/2007 under Section 65(105)(zzzza) of the Finance Act, 1994. They relied on the Tribunal's previous decisions and the Karnataka High Court's judgment in Turbotech Precision Engineering Pvt. Ltd., which held that works contracts were not taxable before this date. The Tribunal agreed with the appellants, noting that the contracts were registered with the Sales Tax authorities and treated as works contracts by both parties, with VAT and TDS deductions supporting this classification.

3. Vivisection of Contracts for Service Tax Purposes:
The Revenue argued that the contracts could be vivisected to separate the supply and service components, thus making the service portion taxable. They relied on the Larger Bench decision in BSBK Pvt. Ltd., which allowed for the vivisection of turnkey contracts. However, the Tribunal found that this decision did not apply, as the Karnataka High Court had already ruled that works contracts could not be taxed prior to 01/06/2007.

4. Eligibility for Exemptions Under Notification No.12/2003-ST:
The appellants claimed eligibility for exemption under Notification No.12/2003-ST, which allows for the deduction of the value of materials supplied from the taxable value of services. The Revenue countered that the appellants did not issue separate bills for materials and services, thus not meeting the notification's conditions. The Tribunal did not delve deeply into this issue, as it found the contracts to be works contracts not taxable before 01/06/2007.

5. Invocation of Extended Period of Limitation for Demand:
The appellants argued that the extended period of limitation was incorrectly invoked, as they were under a bona fide belief that their contracts were works contracts and not taxable. The Revenue contended that the appellants were aware of their service tax liability and only disclosed relevant information after an investigation. The Tribunal did not specifically address this issue, as it set aside the demand on the primary ground of the contracts being works contracts.

Conclusion:
The Tribunal concluded that the contracts in question were works contracts and not taxable prior to 01/06/2007. It set aside the impugned order, allowing the appeal with consequential relief. The Tribunal's decision was based on the classification of the contracts as works contracts, supported by the Karnataka High Court's ruling in Turbotech Precision Engineering Pvt. Ltd., and the consistent treatment of the contracts by both parties and the Sales Tax authorities.

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