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2022 (12) TMI 11 - AT - Service TaxLevy of service tax - respondent have discharged excise duty on their total sale value including the erection, installation and commissioning of such machinery for the period July-2003 to March-2008 - HELD THAT:- There is no dispute that the respondent is a manufacturer of textile machinery and as per the contract they have supplied the goods along with Erection, Commissioning and Installation at the buyer’s site. On the entire activity, right from the manufacturing upto the commissioning of machinery at buyer’s site, the total value is towards the sale of goods. There is no bifurcation of the value in sale of goods and service of Erection, Installation and Commissioning. In such position the entire value of the goods has to be taken as sale value, consequently, no service value is involved separately. In the identical set of transaction, this tribunal has consistently taken a view that when there is a manufacturing and sale of the goods on a particular sale price which involves incidental service such as in the present case, no service tax can be demanded once the entire value is towards sale and has suffered the central excise duty. Reliance can be placed in the cases of COMMR. OF C. EX., VAPI VERSUS ALIDHARA TEXTOOL ENGINEERS PVT. LTD. [2009 (1) TMI 129 - CESTAT AHMEDABAD] and COMMR. OF C. EX., VAPI VERSUS ALIDHARA TEXTOOL ENGINEERS PVT. LTD. [2009 (1) TMI 129 - CESTAT AHMEDABAD] - From the above judgments, it is settled that where the entire value of the goods is towards sale of the goods and subjected to excise duty/customs duty no part of the same can be said to have been collected towards any service. Therefore, involving the same set of facts, in the present case where the entire value has suffered excise duty and the buyer is under obligation to not only manufacture and supply the machinery but also to carry out activity of erection, commissioning and installation of the said machinery, the service tax cannot be demanded. Classification of the service - erection, installation and commissioning service or works contract service? - taxability - HELD THAT:- The show cause notices have proposed the demand under erection, installation and commissioning service. We have decided that the service tax is not payable on the erection, installation and commissioning of service in the facts of the present case as the entire value has suffered excise duty and on this ground service tax is not payable. Therefore, we are not dealing with the second issue about classification of the service that whether the service tax is payable under erection, installation and commissioning service or works contract service. The respondent is not liable to pay service tax in the given transaction of the present case therefore, the revenue’s appeal is not sustainable - Appeal of Revenue dismissed.
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