2019 (4) TMI 2076 - AT - Service Tax

Levy of service tax - composite contract - works contract service - erection commissioning or installation service - manufacturer of lifts at the sites of customers - HELD THAT - The submission on behalf of appellant that the dispute is squarely covered by the earlier decision of the Tribunal in COMMISSIONER OF CENTRAL EXCISE INDORE VERSUS M/S KEHEMS ENGINEERING PVT LTD M/S KEHEMS ENGINEERING PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE INDORE 2015 (8) TMI 640 - CESTAT NEW DELHI is not without merit - There are three definitions that are relevant for resolution of the dispute. The service sought to be taxed in section 65 (105) (zzd) of Finance Act 1994 has remained unchanged since 1st July 2003 save that erection was incorporated on 10th September 2004. The targeted provider of the service described as commissioning and installation agency in section 65(105)(zzd) was prior to 10th September 2004 defined in section 65(29) and thereafter expanded by incorporation of erection to reflect the amendment in section 65(105)(zzd). In our opinion it is the third pertaining to the activity that was sought to be taxed as amended from time to time that requires our attention. The legal position is thus unambiguously clear. The tax liability on erection commissioning or installation prior to 1st June 2007 was limited to execution of work that did not involve supply of materials and that prior to 16th June 2005 even such service simpliciter did not extend to lifts owing to which the demand in the impugned order is without authority of law. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Confirmation of demand under section 73 of Finance Act, 1994.
2. Interpretation of taxability under section 65(105)(zzd) of Finance Act, 1994.
3. Applicability of works contract service under section 65(105)(zzzza) of Finance Act, 1994.
4. Time-barred demand under proviso to section 73(1) of Finance Act, 1994.

Issue 1:
The judgment deals with the confirmation of demand under section 73 of the Finance Act, 1994, along with interest and penalties. The appellant contested the demand primarily on the grounds of non-taxability of the activity engaged by them under section 65(105)(zzd) of the Finance Act, 1994. The appellant argued that the incorporation of "installation of lifts" as a specific description in the relevant section post-June 2005 excluded their activity from taxation. The Tribunal considered the submissions and relevant case law to assess the merit of the appellant's contentions.

Issue 2:
The interpretation of taxability under section 65(105)(zzd) of the Finance Act, 1994 was a key issue in the judgment. The appellant contended that their activity fell under the definition of "works contract service" under section 65(105)(zzzza) of the Act, which, according to them, did not attract tax liability before June 2007. The Tribunal analyzed the definitions and amendments in the relevant sections to determine the scope of taxability for the appellant's activities related to lifts.

Issue 3:
The applicability of works contract service under section 65(105)(zzzza) of the Finance Act, 1994 was crucial in the judgment. The Tribunal referred to a Supreme Court decision regarding the taxation of works contracts and the necessity for specific provisions to tax composite indivisible works contracts. The judgment emphasized the need for clarity in the law regarding the taxation of works contracts and the service elements involved, particularly in the absence of mechanisms for disaggregation.

Issue 4:
The question of whether the demand was time-barred under the proviso to section 73(1) of the Finance Act, 1994 was also addressed in the judgment. The appellant argued that the demand was time-barred due to the pendency of disputes before various forums until a final judgment by the Supreme Court. The Tribunal examined the provisions and relevant circulars to determine the applicability of the time limitation in the present case.

In conclusion, the judgment analyzed various legal aspects related to the confirmation of demand, interpretation of taxability, applicability of works contract service, and the time-barred nature of the demand under the Finance Act, 1994. The Tribunal considered the submissions, case law, and statutory provisions to arrive at a decision in favor of the appellant, allowing the appeal based on the legal positions established during the proceedings.