Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Represented By Shri Durgesh Nadkarni, ... on 22 September, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT:
II
Appeal No.ST/71 & 75/05
Arising out of OIA No.Commr(A)/002 & 003/VDR-II/2005, dt.10.01.05.
Passed by: Commissioner of Central Excise & Customs (Appeals), Vadodara
For approval and signature:
Honble Mrs. Archana Wadhwa, Member (Judicial)
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant/s M/s Kirlburn Engg. Ltd., Shri S.C. Mishra.
Represented by Shri Durgesh Nadkarni, Adv.
Respondent/s CCE Vadodara-II
Represented by Shri Sameer Chitkara, SDR CORAM:
MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing : 22.09.2008 Date of Decision: 22.09.2008 ORDER No. /WZB/AHD/2008 Per: Mrs. Archana Wadhwa, Member (Judicial) The appellants are engaged in the manufacture of machinery, for processing of Tea falling under heading 8419.10 of CETA, 1985. The same being used in dimensions and being heavy, were cleared by the appellant in an un-assembled condition on payment of duty on a single day, but in different lots, loaded in different trucks. In as much as the machinery was being cleared in an un-assembled condition, the same required erection and commissioning at the site of the customer. This installation, erection and commissioning is being done at the customers premises under the supervision of the appellant, for which a separate bill is being raised. The dispute in the present appeal relates to as to whether supervision of erection and commissioning of said machinery at the customers site would be covered under the category of consulting engineering services, so as to attract service tax liability.
2. The Commissioner (Appeals), in his impugned order, has observed as under:
In this case, it is admitted fact that the appellant is engaged in manufacture of engineering goods. It is not disputed that they are also engaged in the supervision of erection and commissioning of machinery manufactured by them. Erection and commissioning of a machine is a separate category of taxable service and is not covered by the category of Consulting Engineers and adjudicating authority has already given the benefit to the appellant in this regard. However, the dispute does not pertain to the service rendered in respect of erection and commissioning but it pertains to the service of supervision of erection and commissioning of machinery. The supervision of erection and machinery, obviously, requires skills based upon knowledge of Engineering. It is not disputed by the appellant that the supervision of erection and commissioning is manifestation of knowledge of engineering and this supervision has to be done by professionals only. The Honble Calcutta High Court in case of M.N. Dastur reported in 2002(140) ETL341 (Cal.) held that if the services rendered is based upon knowledge of engineering, then it automatically comes within the purview of the definition of Consulting Engineers service. Their services also relate to the Discipline of Engineering and fall within the category of supervision of commissioning and initial operations. Thus, they fulfill all essential ingredients of Consulting Engineers. Therefore, the services provided by the appellants of supervision of installation, commissioning and erection fall within the scope and ambit of Consulting Engineering Services as defined under Section 65 of Finance Act, 1994.
3. After hearing both sides, we find that the issue is no more res-integra. Tribunal in the case of CCE Cochin Vs. BPL Telecom (P) Ltd. 2007 (5) STR 349 (Tri-Bang.), held that supervision charges for installation and commissioning of plant cannot be held to be covered under the heading Consulting Engineers. Similarly, in the case of IRCON International Ltd. Vs. CCE Mumbai 2006 (1) STR 46 (Tri-Delhi) has observed that supervision of construction contract cannot be held to be covered under the category of Consulting Engineers. To the similar effect is the majority decision in case of M/s Jyoti Limited Vs. CCE Vadodara 2008 (9) STR 373 (Tri-Ahmd.), laying down that appellant being only manufacturer of the goods and not an engineering firm, providing of technical assistance can not be held to be consulting engineering services, in as much as technical services covers services in areas of advice, consultancy and technical assistance and not other additional services.
4. Apart from the above, we find that the present show cause notice stand issued on 14.10.02 for the period 20.08.97 to 05.11.01, thus invoking longer period of limitation. It is seen that prior to present show cause notice, appellants were issued another show cause notice on 23.08.02 raising demand of duty of excise on the ground that installation, erection charges are liable to be included in the assessable value. As such, it stand contended before us that Revenue was aware of the activity of installation and erection, when the first show cause notice was issued. As such, all the relevant facts were in the knowledge of the authority. Second show cause notice on same facts, could not be taken as suppression of facts and demand is required to be held as barred by limitation. We note that the issue stand covered by decision of Honble Supreme Court in case of M/s Nizam Sugar Factory 2006 (197) ELT 465 (SC), as also by another decision of Honble Supreme Court in case of M/s ECE Industries Ltd. Vs. CCE New Delhi 2004 (164) ELT 236 (SC). Otherwise also, it cannot be said that Revenue was not aware of such activities of the appellant, when the appellant was a registered unit with the Central Excise department and clearing the goods on payment of duty.
5. In view of the above, we set aside the impugned order and allow both the appeals with consequential relief to the appellants. hahea (Dictated & Pronounced in Court) (B.S.V. Murthy) (Archana Wadhwa) Member (Technical) Member (Judicial) cbb ??
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