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TMI Blog2004 (12) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... and they had approached the Tribunal and Tribunal has directed to Commr. (A) to take fresh decision in view of fact of decision of Tribunal in case of M/s. Daelim Indus. Ltd., has been upheld by Hon ble Supreme Court by dismissing the SLP of Revenue. They further submitted that the issue is squarely covered by the decision of M/s. Daelim Indus. Ltd. and M/s. L T Ltd. (Photocopy submitted). They stated that the contract is comprehensive nature which can be seen from the terms of contract. The ratio of the decision of Supreme Court of Builders Association of India can t be extended to Central Excise matter. It is applicable to sales tax matter and same has been clearly pointed in the case of M/s. Geo Miller Co. (P) Ltd. v. State of M.P. Similarly the decision of M/s. Gannon Dunkerly Co. and decision of M/s. Kerala Colour Lab Association are applicable to sales tax matter. The Show Cause Notice do not refer to specific period from which they are liable to pay service tax. They further requested to decide the matter in view of their submission. 3. Facts of the case in brief are that the appellants were awarded the contract for setting up of (1) Solvent-Dewaxing/De-Oiling Unit ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resident Construction Manager, Larsen Toubro Ltd., Digboi site under Sec. 81 of Finance Act, 1994. 6. In this case, the appellants have filed stay application along with main appeal. The stay application was decided and conditional stay was granted vide Stay Order No. 006 to 008/2004 dated 9-2-2004, wherein the appellants were asked to deposit an amount of Rs. 9,68,57,000/- as pre-deposit under Sec. 35F of Central Excise Act, 1944 within two weeks from the date of receipt of the order and report compliance within a week. 7. However, the appellants filed a Miscellaneous Application for reconsideration of the above mentioned Stay Order passed by the Commissioner (Appeals), C. Ex. Cus., Vadodara. They also requested for personal hearing before deciding the Stay application. Accordingly, personal hearing was granted on 3-3-2004, but no one appeared for personal hearing on fixed date and time. Thereafter, the Misc. application was again critically and thoroughly examined, and the undersigned considered it appropriate and directed the appellants vide Stay Order No. 12 to 14/2004 dated 10-3-2004 to pre-deposit Rs. 9,68,57,000/- within a week from the date of receipt of this order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Control Room and Sub-station at Digboi Refinery vide contract No. (1) PROJ/SDU/DR/53 of 1999-2000 and (2) PROJ/HDT/DR/54 of 1999-2000 of M/s. IOC Ltd. (Assam Oil Div.), Digboi. The Adjudicating Authorities under impugned order after going through the clauses of contract held that the services provided by the appellants is clearly and explicitly categorised under consulting engineering service, since the entire project has been clearly bifurcated. 13. The appellants in their defence mainly contended that as per the definition of consulting engineering services, contained in Sec. 65 of Finance Act, 1994 means any Engineering who engaged himself in rendering advice, consultancy and technical assistance to a client in one or more disciplines of Engineering. However, the work carried out by them are only Lump sum Turnkey Composite Contract and therefore will not come under the purview of Service Tax provisions for Consulting Engineer. Moreover, the intention of the Lump sum Turnkey Contract is not to render any technical assistance or consultancy or advice in one or more disciplines of engineering. The intention is only and clearly to carry out Lump sum Turnkey Work Contract of IOC L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding on the exigencies of work so as to complete all works within the contracted time schedule and without any additional cost to owner. ENGINEER-IN-CHARGE - Engineers India Ltd., New Delhi are our Project Management Consultant for the subject works. For further instructions in this regard, please contact : Mr. C.K. Taneja, Deputy General Manager (Project) at El Bhawan, 1, Bhikaji Gama Place, New Delhi -110066. 17. A perusal of various relevant above clauses of agreement/contract entered into by appellants with IOCL (Assam Oil Div.), it is seen that it is a composite contract in the nature of execution of work contract on Turnkey basis on fixed lump sum price. 18. I have also gone through the relevant pages of the following Books wherein turnkey project/contract has been explained. (I) S.B. Sarkar s - Words and Phrases of Excise Customs 3rd Edition : Turnkey (A contract for) a job in which the contractor is to complete the entire operation, leaving the building, a plant etc. ready for use - designed and ready for immediate use by the purchaser. (II) Black s Law Dictionary - Seventh Edition - Bryan A Garner - Editor in Chief : Engineering, procurement and cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 74) E.L.T. 322 (T) = 2004 (60) RLT 505 (CESTAT- Del.) the Hon ble CESTAT, New Delhi held that Service Tax - Consulting Engineer Service - Design element of a work contract is not to be subjected to service tax by vivisecting the contract - Allowed. (3) In case of Rolls Royce Industrial Power (I) Ltd. v. Commr. of Central Excise, Vishakhapatnam - 2004 (171) E.L.T. 189 (Tri.-Del.) held as under : Service tax - Consulting Engineer - Operation and maintenance of Power plant - Contact between operator and owner making former fully autonomous and responsible for performance of plant - Engineering issues to be resolved without giving advice or taking order from owner - HELD : Two parties viz. one giving advice and the accepting it, were absent, and in such a case, demand was not sustainable - Section 65(31) of Finance Act, 1994. Service tax - Imposition of - Job work - Deemed definition of sale for inclusion of transfer of property in works contract as introduced by 46th Amendment to the Constitution of India, does not apply to job works for sake of imposition of service tax - Sec. 68 of Finance Act, 1994. 21. In view of above, and by relying upon the aforesaid decision, I h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejection shall be entertained and relying on this provision, the Revenue contended that under the contract the rolling shutters were to be delivered by the assessee to the company ex-works, that is, at the works of the assessee and the property in the rolling shutters passed to the company as soon as they were delivered and hence it was a contract for sale. ... The true nature of the contract cannot depend on the mode of payment of the amount provided in the contract. The parties may provide by mutual agreement that the amount stipulated in the contract may be paid at different stages of the execution of the contract, but that cannot make the contract one for sale of goods if it is otherwise a contract for work and labour. ... The payment of the amount due under the contract may be spread over the entire period of the execution of the contract with a view either to put the manufacturer or contractor in possession of funds for the execution of the contract or to secure him against any risk of non-payment by the customer. That cannot have any bearing on the determination of the question whether the contract is one for sale or for work and labour. 25. In view of above ruling of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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