2014 (6) TMI 310 - AT - Service Tax

Demand of service tax - erection, commissioning and installation - composite work contract for installing a new plant that involve fabrication, erection, commissioning as well as civil work - Held that - Service Tax is not commodity taxation. When the fabrication work is very clear from the work order, that does not submit to any taxable entry as the law exists. Had the fabrication been brought to any taxable entry, Revenue would have a case. In absence of such taxable entry, the erection, Commissioning or installation does not embrace fabrication for bringing the appellant to the fold of Section 65(39a) of Finance Act, 1994. Therefore, on such preliminary observation of the law, the appellant should succeed when paras 2 & 3 of the show cause notice has not made any effort to bring out service element involved in Sl. No. 1, 3 & 6 of the work order to the ambit of taxation - since law does not warrant the commodity to be taxed under the provision of Finance Act, 1994 - demand set aside - Decided in favour of assessee.

Summary

Issues:
1. Whether certain activities carried out by the appellant are liable for Service Tax under a composite work contract.
2. Whether specific items of work mentioned in the show cause notice should be taxed under the Finance Act, 1994.

Issue 1:
The appellant argued that only certain activities enumerated in the work order, specifically Sl. Nos. 2, 4 & 5 of the "scope of Job & Schedule of Rates," have suffered Service Tax, while the rest of the work mentioned in Sl. Nos. 1, 3 & 6, not involving any taxable service, did not attract Service Tax. The Revenue contended that the work order constituted a composite work contract, and the work mentioned at Sl. Nos. 1, 3, and 6 should be subject to Service Tax. The appellant relied on the Tribunal's decision in a similar case to support their contention. The Tribunal observed that if the work mentioned in Sl. Nos. 1, 3, and 6 does not fall under the classification of erection, commissioning, and installation, it should not be considered a taxable service as per Section 65(39a) of the Finance Act, 1994.

Issue 2:
The show cause notice specifically asked the appellant to justify why Sl. Nos. 1, 3 & 6 should not be taxed under the Finance Act, 1994. The Revenue argued that the appellant undertook activities related to a composite work contract for installing a new plant, which included fabrication, erection, commissioning, and civil work. Therefore, the items mentioned by the appellant should be liable to Service Tax under the appropriate classification as determined during adjudication. The Tribunal noted that the entire issue revolved around whether the items identified by the Revenue from the work order, i.e., item No. 1, 3 & 6, should be subject to Service Tax. After examining the show cause notice and the absence of effort to establish the service element in these items for taxation, the Tribunal concluded that the appellant should succeed in the appeal. The Tribunal decided to allow the appeal and stay application without the need for a pre-deposit, as the law did not support taxing the appellant under the Finance Act, 1994.

In conclusion, the Tribunal found in favor of the appellant, ruling that the specific items of work mentioned in the show cause notice were not liable for Service Tax under the Finance Act, 1994. The appeal and stay application were allowed accordingly, without requiring a pre-deposit.