9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (11) TMI 1153 - AT - Service TaxLiability of Service Tax - Sub-contractor - Erection, Commissioning or Installation Services - Composite contract or not - demand prior to 01.06.2007 - Held that - There is no clarity as to whether contracts are composite contracts. Though such contracts are for setting up of power projects and is most likely to be involving supply of materials as well as service element, this fact needs to be verified. The appellants have discharged service tax after 01.06.2007 under Works Contract Service. The demand of service tax under ECIS cannot sustain after 01.06.2007, if the contracts are of composite nature as laid down by the Tribunal in its decision in M/s. Real Value promoters 2018 (9) TMI 1149 - CESTAT CHENNAI - In respect of the demand prior to 01.06.2007, the Hon ble Apex court in the case of M/s. Larsen & Touboro 2015 (8) TMI 749 - SUPREME COURT has held that the demand for Works Contract Service, which are composite in nature cannot sustain prior to 01.06.2007. This aspect also requires to be looked into. The appellants have produced certificate issue by M/s. BHEL to support their contention that service tax on the said activities has been discharged by M/s. BHEL, who are the main contractors. This aspect has not been considered by the authorities below. The matter requires to be remanded to the adjudicating authority, who is directed to look into the facts whether the contracts for the disputed period are composite contracts and whether the decision in the case of M/s. Real Value promoters and the decision in the case of M/s. Larsen & Touboro would apply - appeal allowed by way of remand.
Issues:
1. Liability of the appellants to pay service tax under Erection, Commissioning, and Installation Services. 2. Whether the contracts are composite in nature involving supply of materials and service element. 3. Applicability of Notification No. 45/2010 for exemption from service tax. 4. Consideration of certificate issued by M/s. BHEL regarding discharge of service tax. Analysis: Issue 1: The appellants were found to have not paid service tax on the amount shown under Erection, Commissioning, and Testing services. The department issued a show-cause notice proposing to demand service tax for the period 2004-05 to 2007-08. The original authority confirmed the demand, along with interest and penalties. The appellants contended that they were under the belief that sub-contractors were not liable to pay service tax, as clarified by the government. They argued that M/s. BHEL had discharged the service tax for the same activity. The Tribunal found discrepancies in the clarity of whether the contracts were composite in nature and remanded the matter for further verification. Issue 2: The appellants argued that certain contracts were composite involving both supply of materials and services, and they had discharged service tax under Works Contract Services after 01.06.2007. They relied on relevant decisions to support their claim. The Tribunal agreed that if the contracts were composite in nature, the demand of service tax under Erection, Commissioning, and Installation Services could not sustain after 01.06.2007. The Tribunal also noted the applicability of a Supreme Court decision regarding demands prior to 01.06.2007, requiring further examination. Issue 3: The appellants claimed exemption from service tax under Notification No. 45/2010 for projects related to the distribution and transmission of electricity. They cited a relevant decision to support their argument. The Tribunal observed that this plea was not considered by the adjudicating authority and directed a review of this aspect. Issue 4: The appellants presented a certificate from M/s. BHEL indicating the discharge of service tax for the contracts in question. The Tribunal noted that this aspect was not considered by the authorities below and directed the adjudicating authority to examine this certificate along with other pleas put forward by the appellants. In conclusion, the Tribunal set aside the impugned order and remanded the matters to the adjudicating authority for a fresh consideration in light of the directions provided, emphasizing the need to verify the nature of the contracts, consider the exemption claim under Notification No. 45/2010, and review the certificate issued by M/s. BHEL regarding the discharge of service tax.
|
