2022 (8) TMI 992 - AT - Service Tax

Valuation - services of erection of transmission lines - single contract or multiple contracts - inclusion of the value of towers/parts supplied by the appellant under the first contract, in the value of the second contract for determining the service tax liability - it is alleged that the appellant had artificially split the two contracts to evade the payment of service tax - benefit of notifications dated 20.07.2010 and 27.02.2010 - extended period of limitation - HELD THAT - A division bench of the Tribunal in KEC INTERNATIONAL LTD VERSUS COMMISSIONER OF SERVICE TAX MUMBAI VII 2019 (9) TMI 1531 - CESTAT MUMBAI dealt with contracts with electricity distribution authorities for supply, and/or installation of transmission towers between 01.10.2004 and 31.03.2009. In paragraph 7, the division bench rejected the contention of the department that the benefit of this notification would not be available to the appellant - The division bench, thereafter, examined the notification dated 20.07.2010 particularly the expression, in relation to and after placing reliance upon the decision of the Tribunal in M/S KEDAR CONSTRUCTIONS VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLHAPUR 2014 (11) TMI 336 - CESTAT MUMBAI conclude that since the expression relating to is very wide in its amplitude and scope, all taxable services rendered in relation to transmission/distribution of electricity would be eligible of the benefit of exemption under notification dated 20.07.2010 for the period upto 27.02.2010. The decision of the Tribunal in Kedar Construction also considered the notification dated 27.02.2010 for the period 27.02.2010 onwards and held that since the exemption is available if the taxable services are rendered for transmission of electricity, the expression for would cover a very wide gamut of activities and, therefore, the activities undertaken by the appellant would be eligible to the benefit of a notification. The appellant is, therefore, clearly entitled to the benefit of both the notifications dated 20.07.2010 and 27.02.2010 - Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Whether the supply contract and erection contract can be construed as a single contract.
2. Applicability of exemption notifications dated 20.07.2010 and 27.02.2010.
3. Validity of the cross fall breach clause making the two contracts interdependent.
4. Inclusion of the value of materials in contracts post 07.07.2009.
5. Invocation of the extended period of limitation.
6. Imposition of penalty.

Detailed Analysis:

1. Single Contract Construction:
The appellant argued that the supply contract and erection contract should not be construed as a single contract. They emphasized that the different clauses of both contracts clearly indicate that the parties intended to execute two separate and independent contracts for the supply of towers and erection. The Tribunal did not specifically address this issue in the order but focused on the applicability of exemption notifications.

2. Exemption Notifications Applicability:
The main contention revolved around whether the services provided by the appellant were exempt under the notifications dated 20.07.2010 and 27.02.2010. The appellant argued that the service for transmission of electricity was exempted for the entire relevant period by virtue of these notifications, and hence, no service tax was payable for activities related to the erection of transmission lines.

The Tribunal examined the notifications and concluded that the appellant was indeed entitled to the benefit of these exemptions. The notification dated 20.07.2010 exempted all taxable services relating to transmission and distribution of electricity up to 26.02.2010, and the notification dated 27.02.2010 provided exemption for services provided for the transmission of electricity from 27.02.2010 onwards. The Tribunal referenced previous decisions, including Kedar Construction, which held that the expression "relating to" and "for" covered a wide range of activities, thus supporting the appellant's claim for exemption.

3. Cross Fall Breach Clause:
The appellant contended that the cross fall breach clause did not make the two contracts interdependent. This argument was not specifically addressed in the Tribunal's decision as the focus was primarily on the exemption notifications.

4. Inclusion of Value of Materials:
The appellant argued that the inclusion of the value of materials could only be done for contracts post 07.07.2009. The Tribunal did not provide a detailed analysis on this issue as the exemption notifications were found to be applicable, rendering this point moot for the periods in question.

5. Extended Period of Limitation:
The appellant contended that the extended period of limitation could not have been invoked. This issue was not specifically addressed by the Tribunal, likely because the primary focus was on the applicability of the exemption notifications, which resolved the main contention in favor of the appellant.

6. Imposition of Penalty:
The appellant argued that penalties should not have been imposed. The Tribunal's decision to set aside the impugned orders inherently addressed this issue, as the confirmation of the demands was overturned, thus nullifying the basis for any penalties.

Conclusion:
The Tribunal set aside the impugned orders dated 31.01.2013 and 10.09.2013, allowing the appeals. The key determination was that the appellant was entitled to the benefit of the exemption notifications dated 20.07.2010 and 27.02.2010, thereby exempting the services provided from service tax liability for the relevant periods. This decision rendered other issues, such as the inclusion of material values and the invocation of the extended period of limitation, secondary and not directly addressed in detail.

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