2017 (12) TMI 1444 - HC - Service Tax

Levy of service tax - construction contract executed on turnkey basis - indivisible contracts - Held that - Upon appreciation of evidence, the tribunal has come to the conclusion that there is an indivisible contract. On the aspect as to whether Service Tax can be levied in respect of composite contract or indivisible contract, the Hon ble Supreme Court in Commissioner of Central Excise & Customs, Kerala Vs. Larsen & Toubro Limited 2015 (8) TMI 749 - SUPREME COURT has held that assessees are correct in their submission that a works contract is a separate species of contract distinct from contracts for services simpliciter recognized by the world of commerce and law as such, and has to be taxed separately as such. Upon consideration of the clauses in the contract, the tribunal has arrived at a categorical finding of fact that there is an indivisible contract. No concrete material, contra, is placed, before us for reversal of such finding. Decided against Revenue.

Summary

Issues Involved:
1. Whether the Tribunal was correct in holding that M/s. HCCL did not render engineering consultancy to NTADCL.
2. Whether the Tribunal was correct in holding that all the contracts constituted a single turnkey contract and hence service tax is not leviable.
3. Whether the Tribunal correctly applied the ratio of the decision in cases involving "Turnkey Projects" when there existed separate contracts for Engineering and Construction.

Issue-wise Detailed Analysis:

1. Whether the Tribunal was correct in holding that M/s. HCCL did not render engineering consultancy to NTADCL:

The Tribunal examined the nature of the contracts between M/s. HCCL and NTADCL. It was found that HCCL prepared engineering designs required for executing the project and simultaneously carried out the construction work. The Tribunal referenced the case of Daelim Industrial Co. Ltd. vs. CCE Vadodara, where it was held that a turnkey contract could not be vivisected, and the service portion separately taxed. The Tribunal concluded that HCCL's activities under the coordination agreement constituted a composite contract, involving both engineering design and construction, and therefore, service tax was not payable as consulting engineering service. The Tribunal's decision was based on the indivisibility of the contract and the precedent that a composite contract should not be split for tax purposes.

2. Whether the Tribunal was correct in holding that all the contracts constituted a single turnkey contract and hence service tax is not leviable:

The Tribunal reviewed the coordination agreement clauses which indicated that the obligations under the separate contracts for engineering and construction were to be treated as a single combined obligation. The Tribunal noted that NTADCL's letter confirmed the single turnkey nature of the contract, reiterating that both the engineering and construction contracts together formed a single contract. The Tribunal's decision was supported by the Supreme Court's affirmation in the Daelim Industrial Co. Ltd. case, which established that turnkey contracts cannot be divided for separate taxation. The Tribunal found that the agreement between HCCL and NTADCL was indeed a single turnkey contract, and thus, service tax was not applicable under the category of consulting engineering service.

3. Whether the Tribunal correctly applied the ratio of the decision in cases involving "Turnkey Projects" when there existed separate contracts for Engineering and Construction:

The Tribunal applied the ratio of the Daelim Industrial Co. Ltd. case, which was upheld by the Supreme Court, to determine that a turnkey contract could not be divided for tax purposes. The Tribunal found that the contracts between HCCL and NTADCL, although executed separately, were intended to be a single turnkey contract. The Tribunal's decision was based on the contractual clauses and the letter from NTADCL, which confirmed the single turnkey nature of the project. The Tribunal concluded that the service tax paid by HCCL was not due, as the entire contract was a composite works contract, not subject to service tax as consulting engineering service. The Tribunal's application of the ratio was deemed appropriate given the indivisible nature of the contract.

Conclusion:

The High Court upheld the Tribunal's findings, concluding that the contracts between HCCL and NTADCL constituted a single turnkey contract. The Court found no concrete material to reverse the Tribunal's decision and dismissed the appeal, answering the substantial questions of law against the revenue. The Court emphasized the indivisibility of the contract and the applicability of the precedent set by the Supreme Court in similar cases.