2012 (7) TMI 26 - AT - Service Tax

Works contract Service - Turnkey contract - Revenue contended the same to be the contract of Erection, Commissioning and Installation services classifiable under the category of Erection, Commissioning and Installation services - period involved prior to 01.06.07 - Held that - There is no dispute that the entire demand is in respect of services rendered by the appellant under the turnkey contract to the service receiver. It is also to be noted that the appellant had considered this turnkey contract as a works contract. Thus, appellant has made out a prima facie case that prior to 01.6.2007 service tax liability on works contract does not arise. Pre- deposit waived and recovery thereof stayed till disposal of appeal. See Asea Brown Boveri Limited (2011 (2) TMI 1093 (Tri)) - Decided in favor of assessee.

Summary

Issues:
Waiver of pre-deposit of service tax under the category of Erection, Commissioning, and Installation services prior to 01.6.2007.

Analysis:
The appellant filed a stay petition seeking the waiver of pre-deposit of service tax amounting to Rs. 6,16,89,690/- along with interest and penalties under various sections of the Finance Act, 1994. The adjudicating authority confirmed the amounts, stating that the appellant is liable to pay service tax under the category of Erection, Commissioning, and Installation services before 01.6.2007. The appellant argued that prior to 01.6.2007, their contracts should be considered as works contract or turnkey contract, not falling under the category of Erection, Commissioning, and Installation services. They cited decisions in support of their stance, including cases of Khurana Engineering Limited and Alstom Projects India Limited. On the other hand, the SDR contended that the services provided by the appellant included both supply of materials and service portion, justifying the tax liability on the service component. Reference was made to decisions in cases such as Instrumentation Limited, Sunil Hi-Tech Engineers Limited, and Gio-Tech Construction, where it was held that the service portion should be taxed even with the introduction of a new entry.

Upon careful consideration, the Tribunal observed that the entire demand pertained to services rendered by the appellant under turnkey contracts, which they considered as works contracts. Previous decisions by the Bench and the High Court of Madras in similar situations were taken into account. The Tribunal noted that the appellant had a prima facie case that before 01.6.2007, service tax liability on works contracts did not arise. As a result, the application for waiver of pre-deposit was allowed, and recovery of the amounts stayed pending the disposal of the appeal. The decision was pronounced in the court by the judges.