2017 (5) TMI 653 - AT - Service Tax

Consulting Engineering Service - scope of services - CBEC Circular No. B 43/5/97-TRU dated 02.07.1997 - activity of providing Design, Drawing and Documents etc under the contact for supply and erection of 6 Moulded LPG Storage Systems-Bullets to M/s IOCL - Whether service tax is chargeable in the category of Consulting Engineers Service on the activity of providing Design, Drawing and Documents etc under the contact for supply and erection of 6 Moulded LPG Storage Systems-Bullets to M/s IOCL, Barauni? - Held that - the demand pertains to the period prior to 2006 and the appellants are a company. In these circumstances the appellants do not come under the definition of consulting engineer in terms of Section 65(31) of the Finance Act 1994. Thus the demand under the head of Consulting Engineercannot be sustained against a company. The proceeding cannot therefore be sustained against the appellant and demand of tax, interest and penalties has to be set aside. Whether service tax is chargeable in the category of Consulting Engineers Service on similar activities undertaken by the appellants in respect of other clients under the Purchase Orders/Contracts during the period 1997-1998 to 2001-2002? - Held that - All contracts in the disputed period are similar to the contract produced by the appellant in case of IOCL - the demand under the category of consulting engineering service dropped. CBEC Circular NO.B.43/5/97-TRU dated 02-07-1997 does not deal with the services in the nature of works contract service where the Hon Apex court has held that no tax can be levied prior to introduction of works contract service. The assessee are not covered by definition of Consulting Engineer Service - appeal dismissed - decided against Revenue.

Issues Involved:
1. Chargeability of service tax under "Consulting Engineers Service" for design, drawing, and documents provided under a contract with IOCL.
2. Chargeability of service tax under "Consulting Engineers Service" for similar activities with other clients during 1997-1998 to 2001-2002.
3. Correct computation of the demand for the period 1997-1998 to 2001-2002.
4. Invocability of the extended period and imposition of penalties on the appellants and their Director.

Detailed Analysis:

1. Chargeability of Service Tax under "Consulting Engineers Service" for IOCL Contract:
The Revenue argued that the services provided by the respondent, including Basic Design Engineering and Detailed Design Engineering, fall under "Consulting Engineer Service" as per CBEC Circular No.B 43/5/97-TRU dated 02.07.1997. However, the Commissioner (Appeals) compared the contract with the Daelim Industries case, concluding that both were turnkey projects for supply and erection, not consultancy contracts. Design and engineering were incidental to the project execution, thus not taxable under "Consulting Engineers Service."

2. Chargeability of Service Tax for Similar Activities with Other Clients:
The Commissioner (Appeals) found that the activities for other clients were similar to the IOCL contract, involving turnkey projects rather than consultancy services. The Tribunal upheld this finding, noting that prior to May 2006, companies were not included under the definition of "Consulting Engineer" as per Section 65(31) of the Finance Act, 1994. Therefore, the demand for service tax under this category for the period in question was not sustainable.

3. Correct Computation of the Demand:
The respondents argued that the demand was based on sales income from the Balance Sheet, which included all kinds of receipts, not just those from works contracts. The Tribunal did not find sufficient grounds to alter the computation provided by the Commissioner (Appeals), who had already scrutinized the contracts and found them similar to the IOCL contract.

4. Invocability of Extended Period and Penalties:
The Tribunal agreed with the Commissioner (Appeals) that the extended period of limitation was not applicable as the appellants had a bona fide belief that they were not liable for service tax. This belief was supported by the statement of their Director, indicating no intention to evade tax. Consequently, the imposition of penalties was also deemed unjustified.

Conclusion:
The Tribunal dismissed the Revenue's appeal, supporting the Commissioner (Appeals)'s findings that the services provided by the respondent did not fall under "Consulting Engineers Service" for the period before May 2006. The contracts were turnkey projects, and the appellants, being a company, were not covered under the definition of "Consulting Engineer" as per the prevailing law during the disputed period. The demand for service tax, interest, and penalties was set aside.

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