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TMI Blog2013 (2) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said Notification are not satisfied – Held that:- A person who claims exemption or concession must establish clearly that he is covered by the provision(s) concerned and, in case of doubt or ambiguity, the benefit of it must go to the state. [CCE versus Hari Chand Shri Gopal & Ors., (2010 (11) TMI 13 - SUPREME COURT OF INDIA)] Prima facie case against the assessee - directed to make a pre-deposit of 25% of service tax. - ST-282/2009 - S-667/KOL/2012 - Dated:- 16-7-2012 - Shri S.K. Gaule, Dr. D.M. Misra, JJ. REPRESENTED BY : Dr. Samir Chakraborty, Advocate, for the Appellant. Shri S. Misra, Addl. Commissioner (AR), for the Respondent. [Order per : D.M. Misra, Member (J)]. - This is an application for waiver of pre-deposit of duty of Rs. 7,21,52,207/- (Rupees Seven Crores Twenty One Lakhs Fifty Two Thousand Two Hundred and Seven only) and equivalent amount of penalty imposed under Section 78 of the Finance Act, 1994. 2.1 Briefly stated the facts of the case are that the applicants/appellants, consequent to award of the job/project as per Tenders, had entered into agreements with their clients, namely,- M/s. Northern Coalfields Ltd., M/s. Southern Coa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey had executed two separate contracts with each of their clients on the terms and conditions stipulated in the respective contracts. In the first set of contract, it was agreed upon to supply the plants, machinery and equipments and in the second set of contract it was agreed to provide services of erection and commissioning of the said plants and equipments. He has submitted that it has been specifically incorporated in each of the said agreement that the award of separate contracts shall not in any way dilute the responsibility for the successful completion of works as per the contract document. Both contracts contained cross-fall-breach clause specifying that breach of one contract would also constitute breach of the other contract. It is his submission that even though there were two separate contracts, all these projects agreed to be completed by the applicant/appellant were turnkey projects and covered under the definition of works contract inserted in the Finance Act w.e.f. 1-7-2007. The ld. Advocate placed reliance on the judgment of the Tribunal in the case of ABB Ltd. v. Commissioner of Service Tax, Bangalore - 2010 (20) S.T.R. 610 (Tri.-Bang.) in support of his submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t . He has submitted that the applicants were conscious of the fact that the tenders were floated for execution of the jobs mentioned in the said tenders were EPC or Turnkey Projects. The agreements/contracts for the said projects had been split into two : one for supply of plants and equipment and the second for erection commissioning of the said plant and equipments. The department has not raised any dispute relating to supply of equipments and accessories whereas the objection of the Revenue relates to the second set of contracts wherein the works and services of the projects were agreed to be carried out. The ld. AR submitted that the applicant had wrongly availed abatement of 67% as per Notification Nos. 19/2003-S.T., dated 21-8-2003 and Notification No. 1/2006-S.T., dated 1-3-2006 against the value of these services to which they are not entitled. He has submitted that since, as per the applicant, the second set of contracts are only for execution of works and services for which they themselves voluntarily registered with the department w.e.f. 1-4-2006 hence the applicant ought to have paid Service tax on the entire value instead of availing the benefit of abatement of 67% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks and services for which the applicants themselves registered with the department w.e.f. 1-4-2006 accepting the said services being related to erection, installation and commissioning services, under the category erection and commissioning services are in dispute. We find that the applicants have been paying Service tax on the abated value of services rendered against the second set of service contracts entered with their clients for erection and commissioning of the plants equipments supplied to their clients as per Notification Nos. 19/2003-S.T. 1/2006-S.T. from 1-4-2006. In other words, while discharging Service tax on the value of the taxable services received against each of such works service contract, the applicant had availed abatement of 67% of the value under Notification No. 19/2003-S.T., dated 21-3-2003 and Notification No. 1/2006-S.T., dated 1-3-2006. The Revenue is in disagreement with the availability of benefit of Notification No. 19/2003-S.T. and 1/2006-S.T. to the applicants/appellants on the ground that in the second set of service contracts, there were no supply of goods involved, therefore, the conditions of the said Notification are not satisfied. Aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption Notification, the claimant ought to satisfy the conditions mentioned in the said Notification; this principle has been affirmed by the Constitution Bench of the Hon ble Supreme Court in Hari Chand Shri Gopal s case (supra) and followed in the case of Commissioner of Central Excise, Surat-I v. M/s. Favorite Industries - 2012 (278) E.L.T. 145 (S.C.). Their Lordships in Favorite Industries case (Supra) quoting from Hari Chand Shri Gopal s case observed at para 14 as follows : 14. Before we deal with the contentions canvassed by the learned counsel for the parties to the lis, we deem it appropriate to notice the observations made by the Constitution Bench of this Court in the case of Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal Ors., (2011) 1 SCC 236 = 2010 (260) E.L.T. 3 (S.C.), insofar as the mechanism and interpretation of an exemption notification issued under a fiscal enactment. This Court has observed in the said decision : A provision especially a fiscal statute providing for an exemption, concession or exception has to be construed strictly. An exemption notification has to be interpreted in the light of the words employed by it and not on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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