TaxTMI 
TaxTMI 
2008 (10) TMI 33
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.... BSBK Pvt. Ltd., are engaged in the business of execution of turnkey contracts for engineering works like drawing, designing, engineering, fabrication, testing, erection and commissioning of plants & equipments at the site of their clients. On scrutiny of the records, the officials of the Central Excise found that during the period from 07.07.1997 to 31.03.2002, the respondent had received from their clients amounts for different services including those falling under "consulting engineer service" a taxable service - but failed to pay service tax on it. Show cause notice was issued followed by adjudication by the Assistant Commissioner, Central Excise, who finally by order dated 02.02.2005 held that for the period in question the resp....
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....es on in some form or the other on the one hand and the services rendered on the other hand. In other words, the contract can be divided into sale contract and service contract in accord with the 46th amendment in the Constitution of India. In the grounds of appeal, reference is made to the CBEC's Circular No. 49/11/2002-ST dated 18.12.2002 holding that in the case of turnkey project, a lot of preparatory work is required to be done, such as, soil testing, survey, planning, designing, drawing etc. before the civil construction work can commence. The design and drawing proposed by the construction company i.e the contractor is subject to approval of the plan and any modification suggested by the client has to be incorporated in the des....
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....International Ltd. vs CCE, Mumbai-IV, 2006 (1) STR 46 (T); CCE, Bhopal vs Shapoorji Pollanji & Co. Ltd., 2006 (1) STR 164 (T); CCE, Raipur vs Beekay Engg. Corporation, 2006 (3) STR 168 (T); Schenk Jenson & Nicholson Ltd. vs CCE, Ranchi, 2006 (1) STR 183 (T); Emerson Process Management Power & Water Solution Inc. vs CCE, Kanpur, 2006 (3) STR 508 (T); Turbotech Precision Engg. P. Ltd. vs CCE, Bangalore-III, 2006 (3) STR 765 (T); and Air Liquide Engg. India Pvt. Ltd. vs CC & CE, Hyderabad-II, 2008 (9) STR 486 (T). In fact, the decision in Daelim Industrial Co. Ltd. (supra) was followed in other cases. 7. In Daelim (supra) it was held : "Thus, a perusal of the clauses of the contract leaves no doubt that the appellant contract with IOC....
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....nder sub-clause (d) remains with the transferor who only transfers the right to use the goods to the purchaser. In other words, contrary to A.V. Meiyappan's decision a lease of a negative print of a picture would be a sale. Sub-clause (e) covers cases which in law may not have amounted to sale because the member of an incorporated association would have in a sense begun both the supplier and the recipient of the supply of goods. Now such transactions are deemed sales. Sub-clause (f) pertains to contracts which had been held not to amount to sale in State of Punjab v. M/s. Associated Hotels of India Ltd. (supra). That decision has by this clause been effectively legislatively invalidated. 42. All the sub-clauses of Article 366(29A) s....
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.... a sale of goods when a doctor writes out and hands over a prescription or a lawyer drafts a document and delivers it to his/her client? Strictly speaking with the payment of fees, consideration does pass from the patient or client to the doctor or lawyer for the documents in both cases. 45. The reason why these services do not involve a sale for the purposes of Entry 54 of List II is, as we see it, for reasons ultimately attributable to the principles enunciated in Gannon Dunkerley's case, namely, if there is an instrument of contract which may be composite in form in any case other than the exceptions in Article 366(29-A), unless the transaction in truth represents two distinct and separate contracts and is discernible as such, then the....
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....he turnkey works contract cannot be vivisected requires reconsideration. We are conscious of the fact that the decision in Daelim was challenged by the Revenue in the Supreme Court, but the appeal was dismissed vide order dated 02.08.2004 reported in 2004 (165) ELT A181. It is well settled that summary rejection of the SLP or appeal cannot be construed as affirmation of the judgment (under challenge) on merits; it only means that the Supreme Court declined to interfere with the judgment. The dismissal of the appeal, therefore, will not operate as a bar to reconsideration of the decision by the Tribunal. 10. There is no dispute that, theoretically, service tax can be levied on service part and, at the same time, sales tax can be....