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TMI Blog2023 (9) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... luding EB infrastructure and land, and the other towards erection and commissioning charges for the Wind Turbine Generator. 2.2 After perusal of the balance sheet, it appeared to the Revenue that the appellant had shown huge amount of expenditure towards "erection and commissioning charges" under the schedule of 'expenses', but however they had been collecting a fixed amount towards the same on which they had also paid the Service Tax. This prompted the issuance of Show Cause Notice dated 28.09.2012 and Statement of Demand dated 03.04.2013 proposing, inter alia, to demand Service Tax. 3.1 The appellant appears to have filed its replies dated 22.11.2012 and 24.05.2013 admitting that the activities undertaken by them involved both supply of various goods as well as erection, commissioning and installation and hence, the same was a composite contract. Further, during the process of setting up of the windmills, the property in respect of the goods being erected, commissioned and installed was getting transferred to the buyers which was amenable to State VAT, but however exempted; from 01.06.2007, the composite contract executed by them was more appropriately classifiable under works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and installation work. Therefore, it is evident that the value of such materials shall also form part of the assessable value. Whereas, in the present case, the assessee has entered into a composite contract and raised two invoices separately one for supply of materials and another for erection, commissioning and installation work and undervalued the service value.." 4.2 At paragraph 7.5 of the order, the original authority, after extracting provisions of best judgement assessment under Section 72 of the Finance Act, 1994, has held that "a careful reading of the work order and breakup of the price structure of the said contracts indicate that the same are required to be construed only as composite contracts and the income received against such composite contracts are to be treated as the gross income and the tax liability has to be worked out as per the provisions of Notification No. 01/2006-S.T. dated 01.03.2006.." He has thus felt it apt to resort to the best judgement assessment. 4.3 In the Order-in-Original dated 22.01.2014, the Commissioner has held that the activity, in the nature of composite contract service provided by the appellant, was be classified under "erection, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely on the decision in the case of M/s. Larsen & Toubro Ltd. (supra) which has been followed by various benches of the Tribunal across the country, including this very Bench, in the case of M/s. Real value Promoters Pvt. Ltd. & ors. v. Commissioner of G.S.T. and Central Excise, Chennai [2018-VIL-648- CESTAT-CHE-ST]. 7.3.1 She would thus contend that for the period from April 2007 to May 2007, the demand under 'erection, commissioning and installation service' cannot sustain as there was no levy on composite contracts. 7.3.2 She would also argue that for the subsequent period from June 2007 to March 2012, the demand under 'erection, commissioning and installation service' cannot sustain because of the composite nature of the contract, which is taxable under the category of works contract service. 7.4.1 Without prejudice to the above, she would also argue that extended period of limitation cannot be invoked. According to her, the demand proposed and confirmed in the impugned orders has been worked out based only on the expenses reflected in the balance sheet and P&L account; the Revenue has not relied on any other document other than these to even allege that there was suppression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , where the allegation for invoking the extended period of limitation reads as under: - 3.0 During the course of audit of assessee's accounts by the Internal Audit Department of this Commissionerate, it was noticed from the purchase orders that they had been collecting charges towards supply of set of blades, lattice tower, nacelle assembly, wind turbine controller, etc. It is also seen that the charges towards foundation, control room, transformer and related electrical works, overhead transmission lines had also been brought down under supply of materials. Further, it was also seen that the assessee had collected some fixed amount towards Infrastructure Development Charges and other statutory charges payable to TNEB. Apart from the above, it was also noticed that they had been collecting an amount of Rs.3 lakhs, Rs.8 lakhs and Rs.10 lakhs respectively towards the erection and commissioning of 250 kw, 750 kw and 850 kw Wind Turbine Generators. On completion of the project they used to raise two set of invoices, one is for supply of pioneer wincon make dual wind electricity generator with lattice tower, Foundation, Control room, HP Structure, 22KV Transformer including EB infrast ..... X X X X Extracts X X X X X X X X Extracts X X X X
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