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Issues: (i) Whether the consolidated consideration paid to the foreign supplier for imported machinery, including installation and commissioning obligations, was liable to service tax as Erection, Commissioning and Installation Service under reverse charge mechanism. (ii) Whether the demand was barred by limitation in the absence of deliberate suppression or intent to evade tax.
Issue (i): Whether the consolidated consideration paid to the foreign supplier for imported machinery, including installation and commissioning obligations, was liable to service tax as Erection, Commissioning and Installation Service under reverse charge mechanism.
Analysis: The invoices disclosed a single consolidated CIF value for supply, installation, supervision and commissioning of machinery, and the department itself proceeded on the total invoice value after allowing abatement. No separate consideration for erection or commissioning was shown to have been negotiated or paid. The contractual arrangement was treated as a composite supply in which installation and commissioning were incidental to the sale and supply of machinery. In such a case, the transaction could not be artificially split to levy service tax on a notional service component, both for the period prior to 01.07.2012 and for the period thereafter, in the absence of a distinct nexus and separate flow of consideration for the alleged service.
Conclusion: The liability to service tax under ECIS on reverse charge mechanism was not attracted, and the issue was decided in favour of the assessee.
Issue (ii): Whether the demand was barred by limitation in the absence of deliberate suppression or intent to evade tax.
Analysis: The appellant had acted on a bona fide belief that no separate service tax was payable where customs duty had already been assessed on the full invoice value including installation elements. The record did not disclose clear evidence of deliberate suppression, wilful misstatement, or any intentional attempt to evade tax. Mere non-registration and non-filing of returns, without affirmative proof of evasion, were insufficient to justify invocation of the extended period.
Conclusion: The extended period of limitation could not be invoked, and the demand was time barred; this issue was decided in favour of the assessee.
Final Conclusion: The impugned demand and penalty were unsustainable both on merits and on limitation, and the appeal succeeded.
Ratio Decidendi: A composite import contract with a consolidated invoice value, where installation and commissioning are incidental to supply and no separate consideration for service is established, cannot be vivisected to levy service tax on a notional service component; absent proof of deliberate evasion, the extended period of limitation is not available.
Composite import contracts cannot be split to tax incidental installation services where no separate consideration is established.
A composite import contract with a single consolidated invoice value for machinery, installation, supervision and commissioning could not be split to levy service tax on a notional erection, commissioning and installation service component under reverse charge, because no separate consideration for the service was shown and installation was incidental to supply. The demand also failed on limitation, as the record did not show deliberate suppression, wilful misstatement or intent to evade tax; mere non-registration and non-filing of returns were insufficient to invoke the extended period. On both merits and limitation, the demand and penalty were held unsustainable.
Composite import contract - Non-payment of service tax under the category of ‘Erection, Commissioning & Installation Service’ (ECIS) on Reverse Charge Mechanism (RCM) - Extended period of limitation. Whether the foreign supplier of machinery has also provided ECIS to the appellant and therefore, the appellant is required to pay service tax under RCM or otherwise ? - HELD THAT: - The Tribunal found from the invoices that the foreign suppliers raised a single consolidated CIF value covering supply of machinery, export packing, shipment, installation, supervision and commissioning, and the demand itself had been computed on the basis of such gross invoice values after allowing abatement. There was no direct evidence of any separately agreed or separately paid consideration for installation or commissioning. In those circumstances, the foreign supplier, acting under the composite supply contract, could not be treated as a distinct commissioning and installation agency for the pre-01.07.2012 period, and even for the period thereafter, in the absence of a clear nexus between a specific consideration and the alleged service element, the contract could not be vivisected for levy of service tax. The Tribunal also noted that the same consolidated invoice value, including installation and commissioning, had been considered for customs assessment under EPCG, and therefore the department could not again carve out an artificial service component from that value for separate taxation. Applying the ratio of Rahil Air Bubbles Pvt Ltd Vs CCE & ST, Rajkot [2019 (11) TMI 565 - CESTAT AHMEDABAD], Bhavik Terryab [2017 (1) TMI 1691 - CESTAT NEW DELHI] and the other decisions noticed, the demand on merits was held unsustainable. [Paras 8, 9, 10, 11, 12] The levy of service tax under reverse charge on the alleged erection, commissioning and installation component was set aside on merits. Extended period of limitation - Bona fide belief - HELD THAT: - The Tribunal held that the department had not established any deliberate or intentional suppression or evasion. The appellant's conduct was found consistent with a bona fide belief arising from the composite nature of the transaction and the fact that customs assessment had been made on the entire invoice value. The department's assumption that the appellant was aware of liability was not supported by contrary evidence clearly showing intent to evade. In such circumstances, the ingredients necessary for invoking the extended period were absent, and the authorities cited on limitation by the appellant were held relevant. [Paras 13] The demand was held time-barred and the impugned order was unsustainable on limitation as well. Final Conclusion: The Tribunal held that the consolidated import contracts for machinery, which included installation and commissioning obligations of the foreign supplier, could not be artificially split for levy of service tax under reverse charge. The demand and equal penalty were therefore set aside, both on merits and on limitation, and the appeal was allowed.