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TMI Blog2018 (6) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Ms. Sulekha Beevi C.S. Member (Judicial) And Hon ble Shri Madhu Mohan Damodhar, Member (Technical) Shri B.Balamurugan, AC (AR) For the Appellant Shri S.Sankaravadivelu, Advocate For the Respondent ORDER Per Bench The above appeals are filed by department. The issue being same in all appeals, they are disposed by this common order. 1. Brief facts are that the respondents, M/s.Swelect Energy Systems Ltd, (Formerly M/s.Numeric Power Systems Ltd) are manufacturers of Uninterrupted Power supply System (UPS) and had units II,III IV under the jurisdiction of the appellant department. The respondents were discharging Central Excise duty, inclusive of the value of the installation charges collected. On 5/9/2006 the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tallation charges be set off against payment of Service Tax. The provisions of Finance Act, 1994 requires that a person who is providing taxable service shall pay service Tax at the rate specified in such manner and within such period as may be prescribed. The adjudicating authority has no power to adjust the duty paid under Central Excise Act against the Service Tax amount payable under Service Tax law. The levy of Service Tax would be determined having regard to the respective nature of services provided by the provider of taxable service, whereas Excise Duty is levied on goods manufactured under Central Excise Act. Having held in the Order-in-Original that the commissioning or installation activity becomes taxable service and that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 76 of the Act ibid. 3. The Ld.Counsel, Sh.S.Sankaravadivelu made written and oral submissions which can be summarized as under : i) The department has not appealed against the finding of Commissioner that the demand for extended period cannot sustain. Similarly the finding that service tax is payable only with effect from 16.6.2005 is also not contested by the department in their grounds of appeal. ii) The main ground raised is that the Commissioner ought not to have adjusted the service tax payable against the Central excise duty already paid by respondents. He adverted to their letter dated 29.10.2006 and submitted that appellant had clearly informed the department that they were including the charges of installation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion charges. v) The Commissioner has rightly taken note of these facts and quantified the demand for the limited period. The respondents accordingly filed ST-3 returns and discharged the service tax liability. vi) It is well settled principle that Central Excise duty and service tax cannot be collected on the same activity. vii) The penalty has been rightly set aside. 4. Heard both sides. 5. The original authority has set aside the demand for the extended period observing that there is no suppression of facts. In the letter dated 29.10.2006, the respondents have informed the department that they are including the installation charges in the assessable value and are discharging service tax on the same. The appellants having di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t when installation charges are included in the assessable value and excise duty paid; as there is no separate contract for installation services, the demand for service tax cannot sustain. In Lloyd Sales Corporation vs State of Andhra Pradesh (1992) 86 STC 529, the Hon.High Court, considered the issue whether the transaction of supply and installation of air conditioners at the customers premises involved independent sales for levy of sales tax. It was held that the air conditioners were supplied in a fully manufactured form and the price was payable immediately on supply. That the work of installation of air conditioners was only incidental to the sale of air conditioners. 8. In our view, in any case, the demand of service tax on 33% o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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