2017 (12) TMI 1503

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....dentical, all the appeals are taken up together for discussion and disposal. 2. Details of three appeals filed by assessee are given below:- Appeal No. Period of dispute OIO Demand confirmed Penalty ST/280/2007 July 2003 to March 2006 No.14/2007-ST dt. 22/03/2007 Rs.1,95,49,257/- Rs.100/- per day u/s 76 Rs. 1,95,49,257/- u/s 78 ST/281/2007 July 2003 to March 2006 No.15/2007-ST dt. 22/03/2007 Rs.1,79,75,757/- Rs.100/- per day u/s 76 Rs. 1,79,75,757/-u/s 78 ST/347/2007 July 2003 to April 2006 No./39/2007-ST dt. 24/05/2007 Rs.7,87,77,447/- Rs.100/- per day upto 18/04/2006 and Rs. 200 per day from 19/04/2006 to 30/04/2006 u/s 76 Rs. 7,87,77,447/-u/s 78   For the sake of c....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... to demand service tax under erection, commissioning and installation service. It also proposed to demand interest under Section 75 and imposed penalties under Sections 76 & 78 besides appropriating the amount deposited during investigation towards the demand of service tax. The appellant filed reply to the show-cause notice and submitted that the contract is composite contract and the Works Contract Service(WCS) has been introduced in the budget 2007-08 and the activities undertaken by the appellant/assessee i.e. setting up of sub-station is not restricted to any geographical area to treat them as plant, machinery or equipment and that the activities undertaken by them do not amount to erection, installation or commissioning and further th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... iii. Prior to 01/06/2007, there was no charging section to specifically levy service tax on works contract service or mechanism to tax service element derived from gross amount charged for works contract less value of property in goods transferred in execution of works contract. iv. When it comes to composite indivisible works contracts, such contracts can be taxed by Parliament as well as State legislature. Parliament can only tax the service element contained in these contracts and the States can only tax the transfer of property in goods element contained in these contracts. 5.2. He further submitted that the appellant is also party to the appeal before the Supreme Court in the case of Larsen & Toubro and he has shown....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....submitted that the Tribunal in the case of Daelim Industrial Co. Vs. CCE, Vadodara [2003(155) ELT 457] held that a works contract on turnkey basis cannot be vivisected for the purpose of levy of service tax. The above decision has been affirmed by the Hon'ble Supreme Court and reported in Commissioner Vs. Daelim Industrial Co. Ltd. [2004(170) ELT A181]. 5.4. He further submitted that it is only through the Finance Act, 2007, w.e.f. 01/06/2007, the Government has sought to levy service tax on some of the activities falling under works contract . The relevant portion of the Finance Act is extracted herein below:- (zzzza) to any person, by any other person in relation to the execution of a works contract, excluding works contract i....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ategory (a) to (e) of the new definition. He also submitted that it is only now that the erection, installation and commissioning of plant, machinery or equipment and turnkey projects have been specifically included under the category of works contract and therefore is liable to service tax only from 01/06/2007. He also referred to Department s Circular F.No.B1/16/2007-TRU dt. 22/05/2007. In support of this submission, he relied upon the following decisions:- i. Diebold Systems Pvt. Ltd. Vs. CST, Chennai [2008-TIOL-489-CESTAT-MAD] ii. Air Liquide Engg. India Pvt. Ltd. Vs. CCE, Hyderabad [2008(9) STR 486] iii. Daelim Industrial Co. Ltd. Vs. CCE, Vadodara [2006(3) STR 124 (Tri. Del.)] iv. Jyoti Ltd. Vs. CCE....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....urt in the case of L&T Ltd. Cited supra which has categorically held that prior to 01/06/2007, any charge to tax under the category of erection, commissioning and installation service is only service contract simpliciter not indivisible WCS. 7. After considering the submissions of the parties and perusal of the material on record and the various judgments relied upon by the appellant, we find that this issue is no more res integra and has been settled by the Hon'ble Supreme Court in the case of L&T Ltd. Cited supra wherein the Hon'ble apex court has held that prior to 01/062007, there was no charging section to specifically levy service tax on WCS, or mechanism to tax service tax element derived from gross amount charged for works contra....