Customs, Excise and Gold Tribunal - Delhi
Emerson Process Management Power And ... vs Cce on 10 January, 2006
Equivalent citations: 2006[3]S.T.R.508
ORDER T.V. Sairam, Member (T)
1. The appellant, M/s Westinghouse Industry Products international Company Inc. (now known as Emerson Process Management Power & Water Solutions Inc.) have filed this appeal challenging the order dated 28.4.2005 of the Commissioner (Appeals), Customs & Central Excise Kanpur, confirming the Best Judgment Assessment under Section 72 passed by the Dy. Commissioner, Central Excise, Agra. In the impugned order, the Dy. Commissioner has concluded that the appellants have rendered the service of consulting engineer for their clients confirming the demand of Rs. 2,15,842/-. Dissatisfied, the present appeal has been filed in the Tribunal. The Id. Counsel for the appellant contends that they have not been providing advice consultancy or technical assistance to their customers and to support her contention, she has referred to various clauses in the agreement entered into by them on 27th Jan. 1997, and the purchase order dated 27th Jan. 1997 addressed to them by Gas authority of India Ltd. to draw support that the appellants had not rendered the taxable service. By referring two various clauses such as individual work contract, completion of subject works at project site, 90% of equipment price of goods shipped etc. as illustration it has been argued that it is an integrated contract and the work executed is in the nature of a turn key project. In this context, the Id. counsel relies upon the decision of this Tribunal in the case of Daelim Industrial Co. Ltd. v. CCE which held that work contract is not liable to Service Tax under consulting engineer services. It was also pointed out that the Apex Court had on 2.8.2004 dismissed the petition for special leave filed by the Revenue challenging the said order of the Tribunal, as reported in 2004 (153) ELT A-181. Further reliance was also placed on the Tribunal's decision in the case of Larsen & Toubro Ltd. v. CCE Cochin reported in 2004 (60) RLT 505 (CESTAT. -Del.). It was held here that the design element of a work contract is not to be subjected to Service Tax by vivisecting the contract.
2. We have heard both sides and examined the case records. As the appellant's have been able to demonstrate that theirs is a turnkey contract and keeping in view the recent decisions of this Tribunal, set aside the impugned order allowing consequential relief to the appellants.
3. The appeal is allowed.
(Dictated & pronounced in open Court on 10.1.06)