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2012 (4) TMI 456 - AT - Service TaxSeparate and distinct contracts or composite contract - the activity of civil work and electrical work - Erection, Commissioning or Installation service - abatement under Notification No.19/2003-ST dated 21/8/2003 - services of erection, commissioning or installation of WTG and establishment of Wind Farm Project - civil foundation is an integral part of erection and installation of the wind mill and the control room and electrical yard etc. also form an integral part for commissioning of the wind mill without which the commissioning of wind mill or WTG is not complete. - Held that - Once it is held that electrical installation is a part of the composite contract for erection, commissioning or installation of WTGs, the appellant s claim for the benefit of Notification No. 19/2003 ST for electrical installation cannot be accepted only on the basis that it had supplied some electrical materials for electrical installation. - Decided against the assessee. Extended period of limitation - held that - no basis or foundation established of bona fide belief. - nothing on record to suggest that the appellant had ever approached the Service Tax authorities to ascertain the details of their liability to pay service tax. - the department has rightly invoked the extended period of limitation.
Issues Involved:
(I) Whether the appellant's contracts with its customers are composite contracts for "erection, commissioning or installation of Wind Farm Project" of which electrical installation is a part, or if the electrical work is a separate activity distinct from the Wind Farm Project. (II) Whether the appellant is eligible for the benefit of Notification No. 19/2003-ST dated 21.8.2003 as amended. (III) Whether the extended period of limitation under the provisions of Sec.73(1) of the Finance Act, 1994 is applicable to the facts of this case. Issue-wise Detailed Analysis: Issue No. (I): The appellant contended that it had four separate contracts embodied in a single work order, covering civil work, supply and installation of electrical equipment, erection and installation of windmills, and final testing and commissioning of windmills. The appellant argued that the disputes were limited to civil work and the supply and installation of electrical equipment, claiming these were distinct activities. Upon examining the work orders and agreements, the Tribunal found that the contracts were composite for the erection, commissioning, or installation of WTGs. The work orders and agreements indicated that civil foundation and electrical installation were integral parts of the Wind Farm Project. The Tribunal held that the appellant's contracts with its customers were indeed composite contracts, and the electrical installation was not a separate activity distinct from the Wind Farm Project. Issue No. (II): The appellant claimed eligibility for the benefit of Notification No. 19/2003-ST dated 21.8.2003, arguing that it supplied materials, including electrical items, required for the electrical installation. The Notification provides an exemption where the service provider supplies plant, machinery, or equipment during the course of providing erection, commissioning, or installation services. The Tribunal noted that M/s. SEL, not the appellant, supplied the WTGs and electrical items to the customers. The Tribunal held that the supply of some materials, including electrical items, by the appellant was incidental to the services of erection, commissioning, or installation of WTGs. Since the appellant did not supply the WTGs to its customers, it was not eligible for the benefit of the Notification. The Tribunal concluded that the benefit of Notification No. 19/2003-ST was not available to the appellant. Issue No. (III): The appellant argued that the show-cause notice demanding service tax for the period 10.9.2004 to 30.9.2005 was partly beyond the normal period of limitation. The appellant claimed a bona fide belief that civil and electrical work were distinct from the erection, commissioning, or installation of windmills, contesting the invocation of the extended period of limitation. The Tribunal found no evidence of the appellant approaching the Service Tax authorities to clarify its tax liability. The Tribunal held that the belief could not be considered bona fide without reasonable consideration. The Tribunal concluded that the department rightly invoked the extended period of limitation due to the appellant's suppression of facts and incorrect self-assessment of service tax. Conclusion: The Tribunal rejected the appeal, confirming the order of the Commissioner, which included the demand for service tax, education cess, interest, and penalties. The Tribunal held that the appellant's contracts were composite for the erection, commissioning, or installation of WTGs, the benefit of Notification No. 19/2003-ST was not available, and the extended period of limitation was rightly invoked.
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