2019 (6) TMI 215 - AT - Service Tax

Liability of service tax - import of certain machinery from various suppliers situated at China, Hongkong, and European countries, who provided the Erection, Commissioning and Installation Services to the appellant free of cost - Works contract service or not - Reverse Charge Mechanism - HELD THAT - Both the lower authorities have concurrently held that the services of Erection, Commissioning and Installation is a composite contract of works contract. Even though if it is accepted the contention of both the lower authorities, then there is no dispute by the Revenue that the service falls under the Works Contract. The period involved is August, 2006- January 2007. During this period the Works Contract Service was not liable to payment of Service tax as held by Hon ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS 2015 (8) TMI 749 - SUPREME COURT . Demand not sustainable - appeal allowed - decided in favor of appellant.

Issues:
1. Liability to pay Service Tax on Erection, Commissioning, and Installation Services provided by foreign suppliers.
2. Applicability of Works Contract taxation prior to 01/06/2007.
3. Consideration for services provided by suppliers.
4. Invocation of reverse charge mechanism.
5. Taxability of services when no consideration is charged.
6. Application of Service Tax (Determination of Value) Rules, 2006.
7. Import of machinery and taxation with Service Tax.
8. Impact of Notification no. 01/2006-ST dated 01/03/2006.
9. Availment of CENVAT Credit by the appellant.
10. Revenue neutrality in the demand for Service Tax.
11. Imposition of penalties under sections 76, 77, and 78.

Analysis:
1. The case involved the liability of the appellant to pay Service Tax on Erection, Commissioning, and Installation Services provided by foreign suppliers. The appellant imported machinery from various countries, and the suppliers carried out these services free of cost. The authorities confirmed the demand of Service Tax, leading to the appeal. The appellant argued that Works Contract services were not taxable before 01/06/2007, citing relevant judgments. The Tribunal found that during the period in question (August 2006-January 2007), Works Contract services were not liable to Service Tax, following the Supreme Court's decision in L&T Ltd.

2. The appellant contended that since no consideration was charged by the suppliers for the services, no Service Tax should be payable. They referenced judgments supporting their argument that no consideration equates to non-taxability. The Tribunal noted that the demand was confirmed without invoking section 66A, which was necessary for the reverse charge mechanism. The appellant also argued against the applicability of Notification no. 01/2006-ST, stating that it couldn't be imposed due to conditions and the availing of CENVAT Credit.

3. Additionally, the appellant highlighted the revenue neutrality aspect, stating that if liable for Service Tax, it would be available as CENVAT Credit, resulting in a revenue-neutral situation. They cited relevant judgments to support this claim. The Tribunal agreed with the appellant's arguments and set aside the demand for Service Tax, emphasizing the non-taxability of Works Contract services during the relevant period. The penalties imposed were also discussed, with the Tribunal noting that penalties under sections 76 and 78 cannot be imposed simultaneously.

4. The judgment, delivered by the Appellate Tribunal CESTAT AHMEDABAD, provided a detailed analysis of the issues raised by the appellant regarding the demand for Service Tax on services provided by foreign suppliers. The decision focused on legal interpretations, precedents, and the specific circumstances of the case to arrive at a conclusion that favored the appellant.

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