9911796707
TMI Blog2017 (5) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... to be set aside. Whether service tax is chargeable in the category of Consulting Engineers Service on similar activities undertaken by the appellants in respect of other clients under the Purchase Orders/Contracts during the period 1997-1998 to 2001-2002? - Held that: - All contracts in the disputed period are similar to the contract produced by the appellant in case of IOCL - the demand under the category of consulting engineering service dropped. CBEC Circular NO.B.43/5/97-TRU dated 02-07-1997 does not deal with the services in the nature of works contract service where the Hon Apex court has held that no tax can be levied prior to introduction of works contract service. The assessee are not covered by definition of Consulting Engineer Service - appeal dismissed - decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... cision is not applicable to the extent case, as the same was given for context of the State Government's Powers to levy Sales Tax on the transfer of property in goods. It has also been argued that no finding on invocation has been given. 3 The learned counsel for the respondents argued that the Commissioner (Appeals) has examined all the aspects of the case. He argued that the facts of the case are identical to those in the case of M/s Daelim Industrial Company. He pointed out that Commissioner (Appeals) has examined the facts in great details in the impugned order. He further argued that the impugned order has compared the facts in the case of Daelim and the instant case. He took us through the comparison appearing in para 2 of the impugned order which reads as follows PARTICULARS DAELIM Case VIJAY TANK Case (present case) 1.Owner M/s. IOCL M/s. IOCL 2.Consultant M/s. Engineers India Ltd. M/s. Project & Development India Ltd (PDIL) 3.Contractor M/s. Daelim Ind. Co. M/s. Vijay Tank & Vessel 4.Project Work Contract for Construction, Erection and Installation of Diesel Hydrodesulphurization (DHDS) Plant and Utilities Work contract for Supply cum Erection of 6 nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 913 (SC) has held that the EPC contract of the kind entered into in the instant case are a separate species of contract distinct from contract for services. The Hon'ble Apex Court has observed that first kind services would be taxable only after interaction of the Works Contract Service in the Finance Act, 1994. 3.1 Ld. Counsel further relied on the decision of Tribunal in the case of Instrumentation Ltd. Vs. Commissioner of Central Excise, Jaipur-I 2011 (235) STR 221 (Tri.-Del.) wherein in the identical circumstances, it was held that for the period prior to 01.06.2007 such contracts would not be taxable under the Finance Act, 1994. He argued that the said decision of Tribunal has been sat-aside by the Hon'ble Apex Court in its decision in the case of Commissioner of Central Excise & Customs, Kerala vs. Larsen & Toubro Ltd. 2015 (39) STR 913 (SC). 3.2 Ld. Counsel further argued that prior to introduction of works contract service; there was no provision of separating the value of the sale element of the works contract from the total value of the works contract. It is further argued that in absence of any such provision the value of works contract cannot be vivisected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be demanded from them as they, being a company, do not fall under the category of 'Consulting Engineer'. In the case of Turbotech Precision Engineering Pvt (Supra) the following has been held "7. During relevant period, the definition of Consulting Engineer defined under section 65(31) reads as hereunder : "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 a client in one or more disciplines of engineering. Subsequently the definition of Consulting Engineer has been amended under the Finance Act, 2006 which has come into effect from 1st May 2006, the definition of which reads as hereunder : 65(31) "consulting engineer" means any professionally qualified engineer of any body corporate or any other 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. 8. From the combined reading of the definition of Consulting engineer prior to 2006 and after 2006, it is clear to the Court that the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the contract as price schedule. Lumpsum, Trunkey basis for performing all works covered under contract. Includes break-up of lumpsum amount as Price Schedule. 6.Clauses relating to drawings etc. 10.01 Drawing accompanying bidding documents indicative. Final construction shall be carried out as per the drawing prepared by the Contractor (DAELIM) reviewed by EIL (Consultant). 1.05.00.0 Detailed DESIGN ENGINEERING Specification in the contract. 1.05.04.01 The Contractor (VIAJY TANK) shall design all civil, structural, architectural work and prepare all required civil,, architectural and structural DRAWINGS needed for construction. Design Engineering to comply with Design "Engineering Specification" given above. 10.2 Contractors (DAELIM) shall prepare basic & detailed engineering drawings & other supporting documents as required for completion. 1.05.04.02 All design engineering and preparation of Drawings shall be carried out by the Contractor (VIJAY TANK) 10.3 Drawing supplied by contractor (DAELIM) shall be reviewed by EIL (Consultant) / Owner (IOCL) 1.05.04.03 & 01.05.04.04 All drawings shall be of standard size, prepared in ink; the Contractor (VIJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Contract Wise Price Details furnished by the party, year wise, for the period of dispute. In view of the various reasons above, it is reasonable to conclude that the activities of the appellants for which the impugned demand was raised by the department/confirmed in the OIO also relate to activities similar to those involved in the contract for Supply and Erection of Mounded LPG Storage Tanks (Bullets) for M/s IOCL Barauni. In this connection, it is noted that as the period of dispute is 1997-98 to 2001-02, which is prior to 10/09/2004 when the Service Tax on Erection, Commissioning and Installation service was introduced and accordingly, the present demand does not involve the aspect of chargeability of service tax on the subject activities/service under the category Erection, Commissioning and Installation service. Moreover, the present demand has been raised by the Department under the category Consulting Engineers Service, as was the case in relation to the demand in the contract for Supply and Erection of Mounded Storage Tanks to M/s IOCL Barauni. As the activity in relation to this portion of the demand are similar to those as in the IOCL Barauni case, the decision reached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (iv), as above, all type of designs involved in a particular project, have to be considered as a part of Consulting Engineer's services. However it is seen that this circular does not deal with the services in the nature of works contract service where the Hon Apex court has held that no tax can be levied prior to introduction of works contract service. Moreover the appellants are not covered by definition of 'Consulting Engineer' as has been held in the decision of this Tribunal in the case of Commissioner of Central Excise, Jaipur-I 2015 (39) STR 847 (Tri.Del.). In the said decision reliance was place of decision of Hon'ble High Court in the case of C.S.T. Bangalore vs. Turbotech Precision Engineering Pvt. Ltd. 2010 (18) STR 545 (Kar.) upheld by the Hon'ble Apex Court in the case of Larsen & Toubro Ltd (supra). 4.3.1 It has been asserted in the review order that the Cornmlsstoner (Appeals) has not considered the findings of the adjudicating authority that Shri T.s.selvan, Excise Officer of the assessee in his statement dated 21-06-2002, recorded under Section 14 of the Central Excise Act, 1944 duly applicable to Service Tax matters in terms of Section 83 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
