2013 (9) TMI 589 - AT - Service Tax

Valuation - claim of abatement - Works Contract service u/s 65(105)(zzzza) Whether by supply of the goods before commencing of the service to be done or having two separate contracts would disturb the nature of the contract as a works contract or whether the whole activities have to be seen as part of the same contract Held that - The services were classified under works contract service if the benefit of Notification No. 12/2003-ST (providing exemption for value of goods sold) can be claimed by the appellant if it was beneficial to them - the activity when seen as a whole has got essential characteristics of a turn-key project. Revenue has allowed abatement of 2/3 of value of the contract towards cost of goods which is built into the rate prescribed under works contract whereas the appellant submits the actual value of goods in their contracts were to the tune of 85%. Waiver of pre deposit 80 lakhs were ordered to be paid on such submission pre-deposit of the balance dues waived till the disposal stay granted partly.

Issues:
1. Classification of service under 'Works Contract' service.
2. Applicability of composition scheme under Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007.
3. Exemption under Notification No. 12/2003-ST for value of goods sold.
4. Verification of abatement of value of the contract towards cost of goods.
5. Pre-deposit requirement for admission of appeal and stay of recovery till disposal.

Issue 1: Classification of service under 'Works Contract' service:
The appellants, a company with technical expertise in setting up cement plants, were involved in design, manufacture, and supply of equipment for such plants, along with supervising installation. Revenue alleged non-payment of appropriate service tax on contracts executed from 1.6.2007 to 31.12.2008. The counsel argued that the contracts did not involve transfer of property during installation, thus not meeting the definition of "works contract" service. They contended that the services were not covered under 'Erection, Commissioning or Installation' or 'turnkey projects' as per Section 65(105)(zzzza).

Issue 2: Applicability of composition scheme under Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007:
The counsel argued that the composition scheme could only apply if opted for, and since the appellants had not opted, imposing it was legally unjustifiable. They contended that the valuation adopted for assessing differential service tax was incorrect if the services did not fall under 'Works Contract Service'.

Issue 3: Exemption under Notification No. 12/2003-ST for value of goods sold:
The counsel raised concerns about the applicability of Notification No. 12/2003-ST for claiming exemption on the value of goods sold. They argued that if the value of goods was excluded from the total project value, the differential tax payable would be approximately Rs.1.57 crores, presenting a detailed worksheet for clarification.

Issue 4: Verification of abatement of value of the contract towards cost of goods:
There was a discrepancy between the abatement allowed by Revenue (2/3 of contract value) and the actual value of goods in the contracts (claimed to be around 85%). This discrepancy was crucial to the dispute, emphasizing the need for verification of actual figures.

Issue 5: Pre-deposit requirement for admission of appeal and stay of recovery till disposal:
Considering the arguments from both sides, the Tribunal directed the appellants to pre-deposit Rs.80,00,000 within six weeks for admission of appeal, with the balance dues waived and recovery stayed until appeal disposal. The decision was made pending further examination of the nature of the activities and potential exemptions applicable.

This detailed analysis covers the various issues raised in the legal judgment, highlighting the arguments presented by both parties and the Tribunal's directives for further examination and compliance.

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