2014 (9) TMI 178 - AT - Service Tax

Erection commissioning or installation service - Exemption under Notification No. 12 of 2003-ST dated June 20, 2003 - exemption is denied also on for the reason that there was no sale of goods within the meaning of the word sale in section 2(h) of the Central Excise Act, 1944 and the deemed sale defined in article 366(29A)(f) of the Constitution of India - installation of retail visual identity elements (RVIs) and sign boards for petrol pumps. - Held that - The excise authorities themselves are making out a case that the appellants manufactured and sold excisable goods to petrol pumps for executing the contract. No proof other than the value of excisable goods arrived at by the excise authorities will be required in respect of such items for the purpose of Notification No. 12/2003-ST. If there is proof in respect of bought out items supplied by the appellant it is for the appellant to submit such proof. Very nature of this case would justify extension of Cenvat credit of excise duty to be paid on goods manufactured if the appellant is not intending to avail of benefit of Notification No. 1/06-ST and 32/07-ST. Which course will be beneficial to the appellant will be known only on determination of the excise duty liability which is yet to be determined finally. The appellants have a plea that they have been paying service tax and filing regular service tax return and that the facts were known to the Department and hence there cannot be a charge of suppression against them. - stay granted - matter remanded back - decided in favor of assessee.

Summary

Issues:
1. Service tax demand for fabrication and installation of retail visual identity elements (RVIs) and sign boards for petrol pumps.
2. Exemption under Notification No. 12/2003-ST.
3. Time-barring of the demand.
4. Penalty imposition for bona fide belief.
5. Value determination for excisable goods sold.

Analysis:

1. The appellants were engaged in the fabrication and installation of RVIs and sign boards for petrol pumps, leading to disputes with the Central Excise Department regarding excise duty on fabricated items and service tax on installation activities. The present appeal challenged the service tax demand for the period May 1, 2006, to March 2008, under "erection commissioning or installation service," with issues regarding the value of materials sold and exemption eligibility.

2. The appellants contended for exemption under Notification No. 12/2003-ST, arguing that they were eligible and that the demand would be lower if granted. The Revenue argued that the appellants failed to provide proof of the value of goods sold, necessary for claiming the exemption, and that invoices did not separately indicate the value of goods sold.

3. The appellants claimed the demand was time-barred due to the Department's knowledge of the matter and pleaded for no penalty imposition based on a bona fide belief of non-taxability. The Tribunal directed the adjudicating authority to examine the time-bar plea and make a finding on the same.

4. Regarding the value determination for excisable goods sold, the Tribunal noted that the excise authorities' determination sufficed for Notification No. 12/2003-ST, and the appellants could submit proof for bought-out items supplied. The Tribunal suggested considering Cenvat credit of excise duty based on final excise duty liability determination.

5. The Tribunal found the deposits made sufficient under section 35F of the Central Excise Act, granting waiver of pre-deposit for balance dues and allowing the appeal by setting aside the impugned order for fresh adjudication based on the observations made.

In conclusion, the Tribunal remitted the matter to the adjudicating authority for a fresh decision, considering all aspects discussed, and disposed of the stay petition and appeal accordingly.