Custom, Excise & Service Tax Tribunal
Gea Process Engineering India Pvt Ltd vs Vadodara-I on 4 June, 2020
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST ZONAL BENCH : AHMEDABAD
REGIONAL BENCH - COURT NO. 3
SERVICE TAX Appeal No. 163 OF 2011
[Arising out of Order-in-Original No OIO-07/STC/BRC-I/MP/COMM-I/2010 dated 26.10.2010
passed by Commissioner of Central Excise & ST, Vadodara]
Gea Process Engineering India Pvt Limited .... Appellant
Block No. 08, Village : Dumad, Savli Road,
VADODARA, GUJARAT
VERSUS
Commissioner of Central Excise & ST, Vadodara .... Respondent
1st Floor...Central Excise Building, Race Course Circle, Vadodara, Gujarat-390007 APPEARANCE :
Shri Paritosh Gupta, Advocate for the Appellant Shri T.G. Rathod, Joint Commissioner (AR) for the Respondent CORAM: HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) HON'BLE MR. RAJU, MEMBER (TECHNICAL) FINAL ORDER NO. A/11106 / 2020 DATE OF HEARING : 17.12.2019 DATE OF DECISION : 04.06.2020 RAMESH NAIR :
The brief facts of the case are that the appellant are engaged in providing the services of "Consulting Engineer" and "Erection, Installation and Commissioning". However they have obtained registration under the head of "Consulting Engineers and Transport of Goods Agency". The case of the department is that Erection, Installation and Commissioning service was independently taxable during the periods involved i.e. 01.04.04 to 31.03.2009 hence the same is taxable. A show cause notice was issued for demand of service tax, interest and penalties. The plea of the appellant before the adjudicating authority was that the since the project was executed along with supply of goods, the service falls under Works Contract and the same was not taxable till 01.06.2007 as the service of Works contract became taxable only from 01.06.2007. For the period post 2 SERVICE TAX Appeal No. 163 OF 2011 01.06.2007, the appellant submitted that the amount received towards the works contract post 01.06.2007 is the service charges towards the service provided prior to 01.06.2007, part of the amount is return of retention money which is not towards any service and the portion of service post 01.06.2007 towards "Erection, Installation and Commission" the service tax paid under the head "Consulting Engineer" service. Therefore entire demand raised in the show cause notice is not sustainable. The adjudicating authority, rejecting the said pleas of the appellant, confirmed the entire demand mainly on the ground that the contract for providing the service is composite contract for supply of service and goods, which cannot be vivisected therefore the service is classifiable under the head of "Erection, Installation and Commission" which was liable to service tax independently during the relevant period. He relied upon various judgments in support of his this finding. He has dealt with the other factual aspect as submitted by the appellant. Being aggrieved by the Order-in-original, the appellant filed this appeal.
2. Shri Paritosh Gupta, Learned Counsel appearing on behalf of the appellant at the outset submit that now the issue is squarely covered in the favour of the appellant by the Apex court judgment in the case of Larsen & Toubro Ltd.-2015(39) STR 913 (SC). As regards other factual issues for the period post 01.06.2007, he submits that since the learned Commissioner held that the service is taxable under "Erection, Installation and Commission" and confirmed demand pre and post 01.06.2007, learned Commissioner has not even considered the submissions made for the period post 01.06.2007. Shri Gupta relied upon the following judgments: 3
SERVICE TAX Appeal No. 163 OF 2011
(a) CCE & Cus, Kerala vs. Larsen & Toubro Limited - 2015 (39) STR 913 (SC).
(b) Sandeep Vilas Kotnis vs. CCE, Kolhapur - 2017 (51) STR 428 (Tri. Mumbai)
(c) Ajit India Pvt. Limited vs. CST, Mumbai - 2018 (19) GSTL 659 (Tri. Mumbai)
(d) Sheth & Sura Engineering Pvt. Limited vs. UOI - 2018 (10) GSTL 239 (Bom.)
3. On the other hand Shri T.G. Rathod, Learned Joint Commissioner, Authorised Representative appearing on the behalf of the revenue reiterates the findings of the impugned order. He also placed reliance on this Tribunal's judgment in the case of Alstom Projects India Limited vs. Commissioner Of Service Tax, Delhi - 2011 (23) S.T.R. 489 (Tri. - Del).
4. Heard both sides and perused the records. The main issue involved is that whether the projects of "Erection, Installation and Commission"
executed by the appellant admittedly with the supply of material is classifiable as "Works Contract" and not liable to service tax prior to 01.06.2007 or is classifiable as "Erection, Installation and Commission" and liable to service tax even before 01.06.2007. We find that this very issue has been finally decided by the Hon'ble Supreme Court judgment in the case of Larsen and Toubro Ltd. supra. The adjudicating authority had no occasion to consider the said judgment as the same was delivered after passing the impugned order. As regard the period post 01.06.2007, we find that though 4 SERVICE TAX Appeal No. 163 OF 2011 the appellant have made categorical submissions before the adjudicating authority on the factual aspect that in some of receipts the service was provided prior to 01.06.07, in some cases the receipt of amount is towards payment of retention money and is some cases though the service tax paid but under different head of "Consulting Engineer" service. However all these submissions were not considered by the adjudicating authority perhaps for the reason that when he has decided the taxability pre and post 01.06.2007, he did not feel necessary to consider the said factual aspects. In view of the above observations, we are of the view that this is a fit case for remand to adjudicating authority for passing a fresh order on all the issues.
5. The impugned order is set aside and matter is remanded to adjudicating authority.
(Pronounced in the open court 04.06.2020) (Ramesh Nair) Member (Judicial) (Raju) Member (Technical) KL