2018 (10) TMI 551 - AT - Service Tax

Classification of services - appellant were executing various contracts for the Andhra Pradesh State Irrigation Development Corporation Ltd., Panchayat Raj RWS, Public Health etc., on composite/Turnkey basis - works contract - demand for the period prior to 01.06.2007 - whether during the period in question, the activities under taken by the appellant would get covered under erection commissioning and installation services or otherwise? Held that - Since, it is undisputed that the activity under taken by the appellant is laying of pipeline for irrigation projects for the period involved under a composite contract and the show cause notice also demands service tax under erection, commissioning and installation charges, we find that the entire demand needs to be set aside as unsustainable. Similar issue came up before the Larger Bench of the Tribunal in the case of Lanco Infratech Limited 2015 (5) TMI 37 - CESTAT BANGALORE (LB) , where it was held that Where under an agreement, whether termed as works contract, turnkey or EPC, the principal contractor, in terms of the agreement with the employer/ contractee, assigns the works to a sub-contractor and the transfer of property in goods involved in the execution of such works passes on accretion to or incorporation into the works on the property belonging to the employer/ contractee, the principal contractor cannot be considered to have provided the taxable (works contract) service enumerated and defined in Section 65(105)(zzzza) of the Act. Also, prior to 01.06.2007 the demand on the appellant cannot be sustained in view of the judgment of the Apex Court in the case of Larsen & Tourbo Ltd., 2015 (8) TMI 749 - SUPREME COURT as it is the fact that contracts which are awarded to the appellant are for erection & commissioning of various irrigation projects. That would mean that the entire contract is a works contract. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Classification of services under erection, commissioning, and installation services for laying pipelines for irrigation projects; Taxability of construction of canals and laying of pipelines for irrigation purposes; Classification of turnkey projects under works contract services; Taxability of subcontracted works under back to back basis.

Analysis:
1. Classification under Erection, Commissioning, and Installation Services: The appellant contested a show cause notice demanding service tax on activities related to laying pipelines for irrigation projects. The Adjudicating Authority classified the activities under erection, commissioning, and installation services based on the contract with APSIDCL. However, the appellant argued that the activity falls under works contract services, citing relevant judgments. The Tribunal noted the undisputed nature of the activity as laying pipelines and set aside the demand, aligning with the decisions in Lanco Infratech Limited and Shonan Siddhart (J.V) cases.

2. Taxability of Construction of Canals and Pipelines: The Larger Bench formulated issues related to the taxability of construction of canals and laying of pipelines for irrigation purposes. The Bench concluded that such activities, even under turnkey projects, should be classified under Commercial or Industrial Construction Service (CICS) and not under Erection, Commissioning, or Installation Service (ECIS) before June 1, 2007. The Tribunal upheld this interpretation and set aside the demand raised in the show cause notice.

3. Classification of Turnkey Projects: The Tribunal analyzed the classification of turnkey projects under works contract services. It followed the decision of the Larger Bench, stating that turnkey projects should be classified based on the essential character of the service provided. The Tribunal emphasized that turnkey projects must be classified under the relevant clauses in the Act. It clarified that turnkey projects under CICS should not be exigible to service tax if primarily for non-commercial or non-industrial purposes.

4. Taxability of Subcontracted Works: The issue of subcontracted works on a back to back basis was also addressed. The Tribunal ruled that if the transfer of property in goods involved in the execution of such works passes to the employer/contractee, the principal contractor cannot be considered to have provided taxable service under works contract services. This decision aligned with the judgment in State of A.P. v. L & T Ltd. The Tribunal set aside the impugned order and allowed the appeal, providing consequential reliefs if any.

In conclusion, the Tribunal's judgment clarified the classification of services, taxability of construction activities, and the treatment of subcontracted works under relevant provisions of the law and established precedents. The decision provided a detailed analysis of the issues involved and upheld the appellant's arguments, setting aside the demand for service tax.