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TMI Blog2011 (3) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... ial construction services’ respectively not involving transfer of property in goods, but it does not mean that prior to 1-6-2007, the services covered by section 65(105)(zzd), 65(105)(zzq) and 65(105)(zzzh) involving transfer of property or goods were not taxable Regarding time limitation - appellant’s action of not declaring the amounts received in respect of the jobs covered under cost centres A & B and D & F in the ST-3 return and not paying service tax in respect of the same, amounts to suppression of the relevant information with intent to evade the payment of tax - Decided against the assessee Regarding penalty - there was suppression of relevant information with intent to evade the service tax and there is no valid reason for not paying the service tax payable by the due date, penalty has been rightly imposed under sections 76 and 78 of the Finance Act, 1994 - Decided against the assessee - ST/87/2008 - ST/97/2011 - Dated:- 14-3-2011 - D.N. PANDA, RAKESH KUMAR, JJ. ORDER Rakesh Kumar, Technical Member. - The facts giving rise to this appeal are, in brief, as under:- 1.1 The Appellant, a company registered under the Companies Act, have manufacturi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts received by them from DMRC, which according to the Department, represent the charges for the taxable services of Consulting Engineer s Service and Installation Commissioning Service provided by the Appellant to DMRC. 1.2 Under section 65(105)(g) read with section 65(31) of the Finance Act, 1994, Consulting Engineer s Service , i.e., the service provided by a consulting engineer or engineering firm in relation to advice, consultancy or technical assistance in any manner in one or more disciplines of engineering, became taxable with effect from 7-7-1997. Under section 65(105)(zzd). read with section 65(29) of the Finance Act, 1973 the service provided by a commissioning and installation agency in relation to installation and commissioning became taxable with effect from 1-7-2003 and with effect from 10-7-2004, the job of erection in connection with installation and commissioning was also brought within the purview of commissioning and installation services. 1.3 In September, 2005, on receipt of an information that the Appellant Company were not paying service tax while taxable services of Consulting Engineer Service and Installation and Commissioning service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant and submitted for approval to DMRC, that after receiving the approval, equipment configuration of individual equipment was decided to suit the design and the required equipment was manufactured in the Appellant s factory or procured from outside, that at the site, the necessary civil work was done and the machinery and equipments and parts thereof were placed on the foundation and fixed; that thereafter the items of machinery/equipment necessary for the project were installed, that after installation of machinery and equipment, the commissioning was undertaken, that for the abovementioned supply of goods and services specific value for each of the machinery and equipment and each item of service is assigned in the contract itself and that he does not know as to why their company stopped the payment of service tax in respect of the taxable services provided by them to DMRC. 1.4 From study of the SYS-1 contract and the statement of Shri Kinshook Chaturvedi of DMRC explaining the provisions of the contracts, the following facts came to light:- (1) The contract SYS-1 had been divided into six sections on geographical basis R1 (Shahdara to Tis Hazari); R2 (Tis Hazari to T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an amount of Rs. 11,45,06,000 appeared to be a pure service contract - but it appeared that no service tax had been paid on the amount received for those contracts. 1.6 In view of the above, following two show-cause notices were issued to the Appellants :- S. No. SCN No. Date Period of SCN Taxable Service Service Tax demanded Panelty 1. DGCEI/AZU/36- -72/05/410, dated 24-3-2006 1-3-01 to 15-12-05 Consulting Engineer s service Rs. 95,74,502 along with interest under section 75 of the Finance Act, 1994 Imposition of penalty on the Appellant under sections 76, 77 78 of the Finance Act, 1994 2. DGCEI/AZU/36 -73/05/414, dated 24-3-2006 1-7-2003 to 15-12-05 Erection, commissioning or Installation Service Rs. 1,11,87,464 along with interest under section 75 of the Finance Act, 1994 Imposition of penalty on the Appellant under sections 76, 77 78 of the Finance Act, 1994. 1.7 The above show-cause notices were adjudicated by the Commissioner, Service Tax, New Delhi vide order-in-original No. 44-45/VKG/2007, dated 1-11-2007 by which- (a) the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MRC. (3) Tribunal in case of Daelim Industrial Co. Ltd. (supra) and Larsen Toubro Ltd. v. CCE 2004 (174) ELT 322 (New Delhi - CESTAT) has held that a work contract cannot be vivisected to charge service tax on the Service Component. Government s SLP against Tribunal s judgment in case of Daelim Industrial Co. Ltd. (supra) hasbeen dismissed by Hon ble Supreme Court vide judgment in 2004 (170) ELT-A181 (SC). Though a Larger Bench of the Tribunal in case of CCE v. BSBK (P.) Ltd. 2010 (253) ELT 522 (New Delhi - CESTAT) has held that a work contract can be vivisected to tax its service component, this judgment being per incuriam, is not a binding precedent, as it has not considered the following judgments of Hon ble Supreme Court in which it was held that the legal fiction of Act 366(29A) is not applicable to laws other than Sales Tax. (a) Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 STT 245 (SC) wherein it was held that ratio of State of Madras v. Gammon Dunkerley AIR 1958 SC 560 on indivisibility of composite works contract survived the 46th Amendment, as the legal fiction created by Art. 366(29A) is confined only to six types of deemed sales transaction for sales ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation machinery was not provided in law before this date, any part of the Appellant s activity in execution of a turnkey contract could not be taxed prior to 1-6-2007. (6) Drawings design prepared are to be treated as service provided by the Appellant to themselves, not as engineering consultancy service provided to the clients. Just because the drawings were to be approved by the clients, it does not seen that the service of consulting engineers has been provided. In this regard, reliance is placed on Hon ble Supreme Court s judgment in case of Patnaik Co. v. State of Orissa AIR 1965 SC 1655, wherein it was held that a contract for the sale of goods to be manufactured by the seller does not cease to be a contract for sale of goods merely because the power of manufacture is supervised by the purchasers. (7) Separate amounts indicated in the contract for various drawings/designs or items of work relating to installation, testing and commissioning are only milestone payments to be released by the client on completion of those milestones even to these payments cannot be treated as value attributable to the job of preparation of drawings/designs and the items of work relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions into different supplies for VAT purposes. House of Lords in another case of Card Protection Plan Ltd. v. Customs Excise Commissioner (2001)VKHL/4 where the CPP offered the credit card holders, a card protection plan which in addition to protecting them against financial loss and inconvenience resulting from loss or theft of their credit cards, passports and car keys, also included other ancillary services to assist the card holders in the event of loss of their credit cards, held that for the purpose of VAT, the supply of insurance service and other ancillary service cannot be separated from the principal supply of insurance service for the purpose of VAT. The ratio of these two judgments of House of Lords is squarely applicable to the facts of this case. (11) It is an admitted fact that the Appellant were initially paying service tax erroneously and stopped payment of service tax replying upon the ratio of Daelim Industrial Co. Ltd. s case (supra). Therefore, there is bona fide dispute with respect to levy of tax on the Appellant s activities. Hence the Commissioner was not correct in invoking the extended period of limitation and imposing penalty on them. 2.2 Shri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dastur Co. Ltd. v. Union of India 2002 (140) ELT 341 (Cal.); (b) Foster Wheeler Energy Ltd. v. CCE C [2007] 9 STT 320 (Ahd. - CESTAT) (c) Air Conditioner Company of India v. CCE [2006] 4 STT 42 (New Delhi - CESTAT) (d) Transweigh (India) Ltd. v. CCE [2007] 6 STT 519 (Mum. - CESTAT) (e) Indian Farmers Fertilizers Co-operative Ltd. v. CCE [2007] 6 STT 283 (New Delhi - CESTAT) (5) A Larger Bench of the Tribunal in the case of BSBK (P.) Ltd. (supra) has held that Turnkey contracts can be vivisected and discernible service elements can be segregated and subjected to tax if the service/services are taxable. This judgment of the Larger Bench is binding on the benches of lesser strength. (6) There is no provision in the Finance Act, 1994 that taxable services mentioned in section 65(105) will not be taxable if provided as a lump sum turnkey contract or as a work contract or as a part of a lump sum turnkey contract or work contract. In a plethora of cases, it has been held by the Apex Court that when the language is clear, the intention is to be gathered from the language used and the courts cannot add words to a statute or read into it something which is not ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract. The facts and the ratio of the judgment of the Hon ble Supreme Court in case of Patnaik Co. (supra) cited by the Appellant is of no relevance to this case. (10) Judgments of House of Lords in cases of Card Protection Plan Ltd. (supra) and British Telecommunication Plc. (supra) being British VAT judgments, are of no relevance to this case. (11) Longer limitation period under proviso to section 73(1) of the Finance Act, 1994, has been correctly invoked in this case and penalty under section 78 ibid has been correctly imposed as the Appellant are guilty of suppressing the relevant facts. 2.3 In rejoinder, Shri P.K. Sahu made the following submissions:- (1) Submissions of the learned Departmental Representative that the judgments of Hon ble Supreme Court in cases of Sentinel Rolling Shutter Engg. Co. (supra) and Patnaik Co. (supra) have no relevance to this case, is incorrect. The ratio of these judgments is very much applicable to the facts of this case. (2) The judgment of Hon ble Karnataka High Court in case of Turbotech Precision Engineering (P.) Ltd. (supra) is not a non-speaking order merely because it has not noted the terms of the contract. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the submissions from both the sides and perused the records. 3.1 The undisputed facts are as under: - (1) The consortium led by the Appellant company had been awarded a contract by the DMRC for Design, manufacture, supply, installation, testing and commissioning of Train control, signalling and telecommunication system for some sections of DMRC for an amount of Rs. 129,58,97,046, Euros 6,82,18,300 and USD 1,93,09,380. (2) Each member of the consortium was to carry out its share of work, as per the agreement among them and was to bill directly to DMRC, as per the rate schedule. (3) The contract is divided into six sections, primarily or geographical basis - R1 [Shahdara to Tis Hazari], R2 [Tis Hazari to Tri Nagar], R3 [Trinagar to Rithala], M1 [Vishwavidhyalaya to ISBT], M2 [ISBT to Central Secretariat], MS [Miscellaneous]. (4) Each section is divided into five cost centres - A, B, C, D E. Cost centre A B are for preparing plans for various activities, preparing preliminary systems design, detailed systems design, and other technical assistance, cost centre C is for manufacture, procurement and supply of machinery equipment to be installed and other mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement dated 5-10-2005, this was a pure service contract. (10) Though initially the Appellant were paying service tax on the services provided under this contract, subsequently they stopped the service tax payment in view of Tribunal s judgment in case of Daelim Industrial Co. Ltd. (supra). (11) While Consulting Engineers Service was taxable with effect from 7-7-1997, the service of Installation Commissioning become taxable with effect from 1-6-2003 and with effect from 10-9-2004, erection was also added, to Installation and Commissioning and the taxable service became erection, installation or commissioning . 3.2 While the plea of the appellant company is that the consortium contract with DMRC (SYS-1) is an indivisible Lump Sum Contract Turnkey for delivery of an installed and functioning train control, signalling, and telecommunication system and is not a contract for providing Consulting engineers Service and erection, installation or commissioning services , that the services provided as in EPC or lump sum turnkey works contract became taxable only with effect from 1-6-2007 under section 65(105)(zzzza) of the Finance Act, 1994, and that prior to 1-6-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation period under proviso to section 73(1) of the Finance Act, 1994 is available to the Department for recovery of allegedly non-paid service tax? (5) Whether penalty under sections 76 and 78 of the Finance Act, 1994 is imposable on the appellant? 3.3 Our answers to these question are as under:- 4. Whether the contract of the appellant led consortium with DMRC (SYS-1) is an indivisible lump sum turnkey works contract for supply of a functional trains control, signalling telecommunication system in a particular section of Delhi Metro, or whether the same is a divisible contract for supply of goods (machinery, equipment etc.) and supply of services (consulting engineer s service and erection, installation or commissioning service). 4.1 The main contention of the Appellant is that their contracts with their clients are indivisible lump sum turnkey contracts whose objective is delivery of installed andfunctioning equipment and such contracts cannot be vivisected for charging service taxon component of drawing/designing training by treating the same as Consulting Engineer s service and in this regard, reliance is placed on the judgment of the Tribunal in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for sale or for service, there are composite contracts consisting of sale as well as a service or sale as well as more than one service. In such contracts, there is intention for sale as well as service, whether one service or more than one service. As observed by Hon ble Supreme Court in para 13 of its judgment in case of Gannon Dunkerley Co. v. State of Rajasthan [1993] 66 Taxman 229, in respect of such contracts, sales tax could be charged even prior to 46th Constitutional Amendment on the sales portion of the contract. Hon ble Supreme Court in case of Sentinel Rolling Shutters Engg. Co. (supra), in para 4 of the judgment, has described such composite contracts as contracts for work to be done for a price and for supply of materials used in the execution of the work for a price, which essentially consist of two contracts - one for sale of the goods and the other for work and labour . However, a contract for work in which the use of material is ancillary or incidental to the execution of work is a contract for work and labour, not involving sale of goods. The former type of contract is a divisible contract consisting of a contract for sale of goods and contract for service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of which there was no contract for sale, either express or implied, may be said to have taken place. An illustration of such a kind is furnished by the case of United Bleachers Ltd. v. State of Madras [1960] 11 STC 278 (Mad.). In that case the assessee bleached and dyed, calendared, pressed and folded unbleached yarn and cloth manufactured by his customer textile mills. The bills issued by the assessee contained, (a) bleaching charges, and (b) charges for stitching, folding, stamping, baling etc., but did not contain separately charges for the materials, used for those purposes. The revenue contended that there was transfer of those materials and separately assessed the charges of those materials holding that though the assessee did not specifically deal in those materials, a portion of the profit earned in the business of bleaching and calendaring could legitimately be attributed to the packing materials and the transaction involved a sale of them for consideration. On a reference, the High Court held that the case was oneof contract of service as distinguished from a sale of a principal commodity such as rice in Assam case, (1953) 4 STC 129 - (AIR 1953 Assam 42) and salt in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of State of Andhra Pradesh v. Guntur Tobacco Ltd. AIR 1965 SC 1396 observing that in absence of any evidence from which contact to sell packing material could be inferred, the respondent s contract of drying tobacco leaves with their customer must be treated as contract of service, the Apex Court in this case held that whether a contract for service or for execution of work involves a taxable sale of goods must be decided on the facts and circumstances of the case, observing as under in para 18 of the judgment .....A Contract for work in execution of which goods are used may take one of the three forms. The contract may be for work to be done for remuneration and for supply of material used in the execution of work for a price, it may be a contract for work while the use of materials is accessory or incidental to the execution of work or it may be a contract for work and use or supply of materials, though not accessory to the execution of contract, is voluntary or gratuitous. In the last class, there is no sale because though property passes, it does not pass for a price. Whether a contract is of first or second class, must depend upon the circumstances, if it is first, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract for sale of goods or a composite contract for sale as well as service or services depends upon the intention of the contracting parties, as expressed in the wordings of the contract. 4.3 There is nothing in the language of section 65(105) or section 66 of the Finance Act, 1994 from which it can be inferred that for attracting service tax, the services specified in section 65(105) must be standalone activity or that a service provided as a lump sum turnkey work contract or EPC contract or as part of such contracts will not be taxable. If the work contract is an indivisible work contract for a particular service and that service is taxable under section 65(105), Service Tax will be chargeable and the question whether the work contract is divisible or indivisible is irrelevant. If the LSTK contract/EPC contract is a composite (divisible) contract for supply of goods and providing of a basket of service, whichever services of the basket of services are taxable under section 65(105), will attract service tax. For the purpose of levy of Service Tax, there is no warrant to treat an EPC contract i.e., a contract for Engineering, design, procurement of goods, erection, installation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and rendering of service is discernible, even without invoking the legal fiction of Article 366(29A), it can be said that service tax can be charged on the service component, if the service/services are taxable service under section 65(105) of the Finance Act, 1994. 4.4 It has been pleaded that Government s SLP to Supreme Court against Tribunal s judgment in case of Daelim Industrial Co. Ltd. (supra) was dismissed by the Hon ble Court and therefore the Tribunal s judgment becomes a binding precedent. This contention is not correct, as dismissal of the Government s SLP is a summary dismissal without giving any reasons and, therefore, in terms of Hon ble Supreme Court s judgment in case of Kunhayammed v. State of Kerala 2001 (129) ELT 11 there is neither merger of the Tribunal s order with the Apex Court s order nor the Tribunal s order, the SLP against which was dismissed, becomes a binding precedent under Article 141 of the Constitution. Moreover, Department s SLP to Hon ble Supreme Court against Tribunal s judgment in case of Larsen Toubro Ltd. (supra) and CCE C v. Petrofac International Ltd. [Order Nos. A/318 319/WZB/2006, dated 21-3-2006], wherein the Tribunal relying up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omers which comprised of Insurance against loss of credit card, passport and car keys as well as services of convenience is to be treated as one single supply of service of insurance and hence fully exempt from value added tax or is to be treated as two service transaction of insurance service and of service of convenience, the latter being chargeable to VAT. The House of Lands having regard to the essential features of transaction held that the transaction is to be treated as of single supply of service of Insurance not of Insurance service and service of convenience. But this judgment is with regard to the certain features of transaction between CPP and their Customers and the ratio of this judgment is not of universal application. 4.4-2-2 In case of British Telecommunications Plc (supra), BT purchased cars from manufacturers who changed separately for the cases and for the delivery charges - The property in cars passed only on or after delivery. No VAT deduction was available as per the British VAT laws to BT in respect of purchase of cars. The dispute was as to whether deduction of VAT payable on delivery charges was available to BT. It was held by House of Lands that no deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telecommunication system. Thus, whole cost centres A B and D E cover pure service activity, cost centre C covers supply of equipment accessories to be installed. Each cost centre is divided into milestone which are nothing but various activities of services in cost centres A B and D E and supply of various items of equipments, machinery accessories in cost centre C and the Schedule of Milestone payment pricing document , which is part of the contract, gives the price for each milestone . At the end of each months, the contractor presents the bills to DMRC on the basis of the milestone activities completed and payments are released against those bills - full payment of the activity was completed within the time-limit and after deducting penalty for delay, if the activity was not completed by the due date. From a look at the Schedule of milestone payment and pricing document of the contract (SYS-1) it is clear that milestone payments mentioned against various milestones are nothing but the prices for various services to be provided and goods to be supplied and this has been admitted by Shri Sandeep Joshi, Project Manager, of the appellant in his statement d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply of equipment and parts thereof and other materials like cables, optic fibre etc. for specified amounts, as mentioned in cost centre C of each section is also evident. Therefore, this is a contract for sale as well as services and not an indivisible works contract as contended by the appellant. In fact there is nothing in this contract from which such a conclusion can be drawn. 4.5-3 Appellant s plea is that the amounts shown against various milestones of cost centres in the schedule of milestone payment and pricing document are not for those activities. This plea is unacceptable in view of statements of Shri Sandeep Joshi, Project Manager of the appellant company and Sh. K. Chaturvedi, JE (Signalling), DMRC and also the fact that the various milestone are nothing but the events of completion of specific jobs and the events of supply of specific items of equipments, parts and other materials. In this regard, the judgment of Hon ble Supreme Court in case of Sentinal Rolling Shutters Engineering Co. (supra) cited by the appellant wherein Hon ble Supreme Court observed that true nature of a contract cannot depend upon the mode of payment of the amount provided in the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineer s Service become taxable with effect from 7-7-1997. Section 65(105)(g) of the Finance Act, 1995 defines Consulting Engineer s Service as - any service provided to a client, by a Consulting Engineer in relation to advice, consultancy or technical assistance in any manner in one or more discipline of engineering . The term Consulting Engineer , as defined in section 65(31) of the Act is any professionally qualified engineer or an engineering firm, who either directly or indirectly renders any advice, consultancy or technical assistance in any manner to a client in or more disciplines of engineering. 5.1-1 As per the Circular No. B43/5/97-TRU, dated 2-7-1997 of the Central Board of Excise Customs, the scope of Consulting Engineer s Service , which has to be treated as contemporaneous exportion of this term, this service covers - (a) Feasibility study/pre-design services, (b) Basic design engineering, (c) Detailed design engineering, (d) Constructive supervision and project management, (e) Supervision of commissioning trial operations, (f) Manpower planning training, and (g) Trouble shooting and technical services including establishing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communication system for a particular section of Delhi Metro which involves installation of electrical and electronic equipment, its testing and commissioning. 5.3 In view of the above, while the activities covered by cost centres A B are taxable as Consulting Engineer s service , the activities covered by cost centres D E are taxable as Erection, installation and commissioning service. 6. Whether the services of Consulting engineer s Service and Erection, installation or commissioning service provided as a works contract or as part of works contract could be charged to service during the period prior to 1-6-2007? 6.1 It has been pleaded that the service of designing erection, installation commissioning along with goods supply, provided as a turnkey work contract could be subjected to tax only with effect from 1-6-2007 under section 65(105)(zzzza) of the Finance Act, 1994, read with Rule 2A of the Service Tax (Determination of Value) Rules, 2006 as work contract Service and this being a new entry, during the period prior to 1-6-2007 no service tax could be charged in respect of such contracts and in this regard, reliance has been placed on judgment of Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he execution of the said work contract. Alternatively, the assessee at his option could pay duty at the rate prescribed in Rule 3(1) of the Work Contract (Composition Scheme for Payment of Service Tax) Rules, 2007, on the gross amount charges for the work contract. Thus section 65(105)(zzzza) of Finance Act, 1994, read with Rule 2A of Service Tax (Determination of Value) Rules, 2006 and Works Contract (Composite Scheme for Payment of Service Tax) Rules, 2007, provides a machinery for assessment of Service Tax on certain types of contracts mentioned in Explanation to section 65(105)(zzzza). On comparing the definition of works contract as given in Explanation to section 65(105)(zzzza), with the definitions of (a) erection, commissioning or installation service as given in section 65(105)(zzd), read with section 65(29) and section 65(39a); (b) Commercial or industrial construction service , as given in section 65(105)(zzq) read with section 65(25b), and (c) Residential Construction Service as given in section 65(105)(zzzh) read with section 65(30a) 65(91a), it will be seen that the works contract , defined in Explanation to section 65(105)(zzzza) is nothing but contract for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xable services defined in various clauses of section 65(105) have to be standalone services and will not attract tax, if they are provided along with other services or providing of the service involves supply/use of goods on which VAT or Sales Tax is payable. Hon ble Supreme Court in case of Tamil Nadu Kalyana Mandapam Association v. Union of India 2004 (167) ELT 3, while upholding the levy of service tax on catering service has held that catering of food and beverages by an outdoor caterer is a service and service tax on the same will be chargeable on the gross amount charged for the service, even if on the supply of food and beverages, sales tax has been charged by the State Government by treating the same as sale under article 366(29A)(f) of the Constitution. (2) The entry Service in relation to execution of work contract as defined in section 65(105)(zzzza) is different from services defined in other sub-clauses of section 65(105). In fact, as discussed above, section 65(105)(zzzza) read with Rule 2A of Service Tax (Determination of Value) Rules, 2006 and Works Contract (Composite Schemes for Payment of Service Tax) Rules, 2007 only provide a new machinery provision for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es a separate mode of assessment of Customs duty on a number of machines and other goods imported for initial setting up of a plant or a substantial expansion of an existing plant. The judgment of Hon ble Bombay High Court in case of Indian National Shipowners Association (supra) is therefore not applicable to the services covered under section 65(105)(zzzza) as services covered by this section and section 65(105)(zzd), 65(105)(zzq) and (zzzh) are over lapping. As regards the judgment of Hon ble Karnataka High Court in case of Turbotech Precisions Engg. (P.) Ltd. (supra) since this judgment does not discuss as to how prior to 1-6-2007, the type of contracts mentioned in Explanation to section 65(105)(zzzza) were not taxable under section 65(105)(zzd), 65(105)(zzq) or 65(105)(zzzh), the same is not a binding precedent. (3) Tribunal in case of Sunil Hi-tech Engineers Ltd. v. CCE [2010] 24 STT 356 (Mum. - CESTAT) has held that construction service was taxable even during period prior to 1-6-2007, the date from which section 65(105)(zzzza) regarding work s contract service was introduced. 7. Whether longer limitation period under provisions of section 73(1) of the Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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