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TMI Blog2015 (12) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that the appellant had provided consulting engineer service to M/s BALCO in terms of Contract No. BALCO-SEPCO-02 for engineering and technical services for the captive power projects. 2. Ld. Advocate for the appellant has essentially argued/ contended that : (1) It had a contractual obligation with BALCO to procure, set up and bring into commercial operation captive power plants at their site. The scope of activities included design, engineering, procurement, manufacture, supply, erection, testing, commissioning and reliability run, demonstration of performance guarantees as well total project management in an integrated manner on turnkey basis. Thus it involved composite works. (2) For that purpose they entered into four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depending upon various stages of completion of project as a whole. The performance parameters were also stated unit wise for each unit and the bank guarantee of 10% of the total contract price was for the entire project. The time schedule is indicated unit wise and not contract wise. The technical specifications are set for all contracts. Thus, the service rendered was works contract service and it was only for the purpose of convenience that four separate contracts were entered into and the breach of anyone contract was to be treated as breach of all contracts. The appellant cited the judgement of Supreme Court in the case of BSES Ltd. Vs. Fenner India Ltd. (2006) 2 SCC 728 wherein the Supreme Court held as under: "Upon a careful readin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cease to be an indivisible works contract was rejected. (5) Thus the service rendered was works contract service which was not taxable prior to 1.6.2007 as per the judgement of Supreme Court in the case of CCE Vs. M/s Larsen & Toubro Ltd. 2015-TIOL-187-SC-ST. The period involved in this case is August, 2003 to November, 2005. 3. Ld. DR, on the other hand, argued that even if the appellant was given work for four 135MG power plants, it had entered into four separate independent contracts and the contract in question was purely a sweat contract and did not involve supply of any goods at all. Each contract laid down its own terms and conditions and its own scope of work, responsibility and obligation value etc. and therefore the judgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, transport terminals, bridges, tunnels and dams. Explanation : - For the purposes of this sub-clause, works contract means a contract wherein, - i. transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and ii. such contract is for the purposes of carrying out,- a. erection, commissioning or installation of plant, machinery, equipment or structures, whether pre-fabricated or otherwise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is rendered unnecessary in this case for reasons that follow. 6. The impugned demand has been confirmed under Consulting Engineer Service. Definition of consulting engineer during the relevant time as given under Section 65(31) of the Finance Act, 1994 was as under : "Consulting engineer" means any professionally qualified engineer or an engineering firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to any person in one or more disciplines of engineering. " The said definition was amended with effect from 1.5.2006 to read as under : "Consulting engineer" means any professionally qualified engineer or anybody corporate or any other firm who, either directly or indirectly, ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral Clauses Act, 1897 would not apply. 6. From a reading of the impugned order, we find that the Karnataka High Court has also taken the view that the expression consulting engineer as it appeared in Section 65(31) of the Finance Act, 1994, at the relevant time (i.e. prior to 1-5-2006), did not include a private limited company or any other body corporate". 7. It is seen that the period of dispute in this case is August 2003 to November 2005. Thus during the relevant period, the appellant being a body corporate was not covered under the definition of consulting engineer as per the above quoted judgement of Delhi High Court and consequently, the service rendered by the appellant could not be classified under Consulting Engineer Service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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