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TMI Blog2013 (9) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... n and commissioning services rendered by him as the said proviso specifically provides for inapplicability of the said explanation for the contract entered prior to 07.07.2009, wherein the work has commenced - From the contract which was produced before us, we find and more specifically the supply contract, it indicates that the ownership of the plant and machinery gets passed over to the service recipient, as and when the said machinery is delivered at the site of the said M/s VPCL or M/s EPGL - Issue needs to be considered in depth - Appellant has made out a case for waiver of pre-deposit of the amounts involved – Appeal allowed – stay granted. - ST/10138/2013 - Misc. Order No. M/12251/2013-WZB/AHD - Dated:- 3-4-2013 - Mr. M.V. Ravindr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand on the appellant on the ground that the appellant had not included the value of the indigenously procured plant and machinery for discharge of Service Tax liability. It is his submission that there is dispute as to the discharge of Service Tax liability on the contract entered by the appellant for erection, installation and commissioning services. It is his submission that the adjudicating authority has held against the appellant only on the ground that the indigenously procured machinery was procured by the appellant for further use in erection of power plant and hence the value needs to be considered for discharge of Service Tax liability under the works contract scheme for opting for composite scheme for discharge of Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were prior to 07.07.2009. 3.1 As regards the merit, it is his submission that the appellant herein procured plant and machinery like boilers, transformers, turbines etc. which are the subject matter for installation in a power plant. It is his submission that the appellant had provided services, wherein they have used various other materials like cement, steel and other consumables for which only they have discharged Service Tax liability. It is his submission that plant and machinery which has been procured and supplied to M/s VPCL or M/s EPGL, are the properties of the service recipient, the moment the plants and machinery lands at the site. To support this claim, he would draw our attention to the supply contract entered by them with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ramky Infrastructure Ltd 2012-TIOL-613-CESTAT-BANG. He would also submit that in the appellant s own case, in ITAT on 28.02.2000, specifically gave an order though there being a separate contract, needs to be read as a composite contract of construction of refineries. It is his submission that the view rendered by the ITAT in the appellant s own case, will apply to the issue. 5. In rejoinder, the ld.Counsel would submit that the judgment of the Hon'ble Apex Court in the case of Mahindra Mahindra Ltd. 1995 (76) ELT 481 (SC), had clearly laid down that the agreement between the buyer and the seller needs to be interpreted as is, as it reflects the understanding between the contacting parties. It is his submission that the supply cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g contained in section 67 of the Act and rule 2A of the Service (Determination of Value) Rules, 2006, the person liable to pay service tax in relation to works contract service shall have the option to discharge his service tax liability on the works contract service provided or to be provided, instead of paying service tax at the rate specified in section 66 of the Act, by paying an amount equivalent to 1[four] percent of the gross amount charged for the works contract. 2[Explanation. - For the purposes of this rule, gross amount charged for the works contract shall be the sum, - (a) including - (i) the value of all goods used in or in relation to the execution of the works contract, whether supplied under any other contract for a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d over to the service recipient, as and when the said machinery is delivered at the site of the said M/s VPCL or M/s EPGL. 11. We find that this issue needs to be considered in depth. At this stage, wherein an application for waiver of pre-deposit is being considered, we find that the proviso to explanation to the said Rule which is reproduced above, will apply in its full force as the appellant has made out a case for waiver of pre-deposit of the amounts involved. 12. Accordingly, we allow the application for waiver of pre-deposit of the amounts involved and stay the recovery thereof till the disposal of appeal. 13. At this juncture, both sides make an oral prayer that since the amounts involved are substantial, the matter may be tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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