2018 (11) TMI 1153

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....e appellants had showed an amount of Rs. 2,50,04,313/- under the caption Erection, Commissioning and Testing for which service tax was not paid. On enquiry the assessee had replied that these were amounts received from the projects executed for M/s. BHEL and that they were informed that M/s. BHEL would be paying the service tax. The department after scrutiny of invoices and upon reconciliation with the balance sheet etc., was of the view that the appellants are liable to discharge service tax even if they were a sub-contractor of M/s. BHEL. Show-cause notice was issued proposing to demand service tax from appellants under Erection, Commissioning or Installation Services for the period 2004-05 to 2007-08. After due process of law, the origin....

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....mmissioner of Customs, Guntur reported in 2017 (48) S.T.R. 165 (Tri.-Hyd.). 2.1 It is submitted that for certain contracts the appellants have discharged tax under WCS after 01.06.2007 and the same was intimated to the department vide communication dated 23.10.2008. Thus, the entire demand made under Erection, Commissioning and Installation Service would fail in view of the decision of the Supreme Court in M/s. Larsen & Toubro reported in 2015 (39) S.T.R. 913 (S.C.) and the Hon'ble Tribunal's decision in M/s. Real Value promoters Vs Commissioner of Central Excise in Final Order No.42436-42438/2018 dated 18.09.2018. 2.2 Without prejudice, the appellants submit that the projects herein are for distribution and transmission of electricity a....

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.... of materials and rendering of services, the demand of service tax under Erection, Commissioning and Installation Service [ECIS] will not sustain for the period after 01.06.2007 as per the decision of the Tribunal in the case of M/s. Real Value promoters (supra) and that demand prior to 01.06.2007 will not sustain as per decision in M/s. Larsen & Touboro (supra). On perusal of the show-cause notice as well as the impugned order, we have to agree with the submission of the learned Authorised Representative that there is no clarity as to whether contracts are composite contracts. Though such contracts are for setting up of power projects and is most likely to be involving supply of materials as well as service element, in our view, this fact ....