2017 (1) TMI 1691 - AT - Service Tax

Reverse charge mechanism - erection commissioning and installation service - customs duty has been discharged on the full gross value contracted and shown in the invoice during the course of import of the said machinery - demand of service tax and penalties - HELD THAT - There is a certificate issued by the jurisdictional Superintendent of Central Excise on 07.07.2006 in connection with the appellant s obligation under the ECCG Scheme indicating the installation of 2 of the machines prior to 18.04.2006. Similarly there are certain indications based on the correspondence entered into by the appellant with the supplier of machines that the supplier appears to have had an establishment in India during the material time. Further the contract for importation of this machinery is admittedly a composite one for lump-sum payment which included installation and erection of the machine at the appellant s premises - The customs duty on the whole value is claimed to have been discharged by the appellant. In such situation we find that the question of subjecting a portion of the invoice value for service tax purpose is not sustainable. Prima-facie the split up of value for service tax purpose when the whole value has been subjected to customs duty towards import of goods is not sustainable. However the basic facts like contract and the invoices alongwith the other issues raised by the appellant is to be examined afresh by the original authority - Appeal allowed by way of remand.

Summary

Issues:
- Applicability of Section 66A of Finance Act, 1994 for service tax liability
- Installation date of certain machineries
- Consideration for supply of goods and erection services
- Time bar for demand invoking extended period
- Liability for service tax on the whole value of the contract
- Remand of the case to the original authority

Analysis:

1. Applicability of Section 66A: The appellant contested the application of Section 66A for service tax liability, arguing that the foreign suppliers of the machinery had a permanent establishment in India during the material time. The Tribunal noted indications of the supplier's establishment in India and a certificate confirming installation of some machines before the introduction of Section 66A.

2. Installation Date of Machineries: The appellant claimed that certain machines were installed before the implementation of Section 66A. The Tribunal considered evidence, including correspondence with the supplier and a certificate from the Central Excise Superintendent, to support the installation of machines prior to the relevant date.

3. Consideration for Supply and Erection Services: The appellant highlighted that the contract and invoices indicated a lump-sum payment for both goods supply and erection services. They argued that since customs duty was paid on the full value, there was no separate consideration for taxable services. The Tribunal referenced previous decisions to support the appellant's position.

4. Time Bar for Demand: The appellant contended that the demand invoking the extended period was time-barred, challenging the sustainability of penalties imposed. The Tribunal found merit in this argument and deemed the demand invoking the extended period as not sustainable, leading to the non-sustainability of penalties.

5. Liability for Service Tax: The Tribunal emphasized that when a contract is all-inclusive with a lump-sum payment and excise duty is paid on the entire value, there may be no liability for service tax. They referenced previous judgments to support this stance and directed a fresh examination of the facts by the original authority.

6. Remand of the Case: Due to the need for a thorough review of factual details and consideration of the appellant's submissions, the Tribunal decided to remand the case to the original authority for a fresh decision. All issues, including the question of time bar, were kept open for further examination, and the appeal was allowed by way of remand.

This detailed analysis of the judgment showcases the Tribunal's careful consideration of various legal and factual aspects raised by the appellant, ultimately leading to the decision to remand the case for a fresh determination by the original authority.