2008 (10) TMI 33 - AT - Service Tax

Business of execution of turnkey contracts for engineering works like drawing, designing, engineering, fabrication, testing, erection and commissioning of plants & equipments at the site of clients - consulting engineer service - whether turnkey contract can be vivisected - conclusion in Daelim case on the point, prima facie, being not in accordance with law, hence case is referred to the Larger Bench to consider the correctness of the decision.

Summary

Issues:
Interpretation of taxable services under the Finance Act for consulting engineer services in turnkey contracts.

Analysis:
The case involved a dispute regarding the liability of a company for service tax on amounts received for services, including consulting engineer services, in turnkey contracts. The Revenue contended that the services provided fell under taxable services, while the company argued that service tax was not applicable as turnkey contracts cannot be vivisected. The Tribunal noted that works contracts can be dissected for levy of sales tax and service tax post the 46th Amendment. The company relied on the dominant nature test to determine the type of contract, emphasizing that the contract was indivisible. The Tribunal referred to various precedents to support both positions.

The Tribunal analyzed the decision in Daelim Industrial Co. Ltd. case, which held that a work contract cannot be vivisected for taxation purposes. However, the Tribunal expressed a prima facie view that this decision was not in line with the Supreme Court's ruling in Bharat Sanchar Nigam Ltd. vs Union of India, which clarified the applicability of the 46th Amendment regarding works contracts. The Tribunal highlighted the need to consider the dominant nature test only for contracts not falling under specific clauses of the Amendment.

The Tribunal acknowledged the theoretical possibility of levying service tax on the service part and sales tax on the sale part of a turnkey contract. However, it emphasized the need for the service to qualify as a taxable service under the Finance Act. The Tribunal raised the crucial question of whether a turnkey contract can be vivisected for tax purposes, indicating the need for further examination. Consequently, the appeal was referred to a Larger Bench for reconsideration, emphasizing the importance of clarifying the vivisection of turnkey contracts for tax assessment.

In conclusion, the judgment delved into the complexities of taxing services in turnkey contracts, considering the applicability of the dominant nature test, precedents, and the constitutional framework post the 46th Amendment. The decision to refer the case to a Larger Bench underscores the need for clarity on the vivisection of turnkey contracts for tax assessment, highlighting the nuanced legal interpretation required in such matters.