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TMI Blog2010 (8) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was required to pay the service tax under the category of Erection, Commissioning and Installation charges. 3. Accordingly, the appellants were asked to provide the charges recovered by them from their customers for the services provided in respect of Erection, Installation and commissioning. The appellants vide their letter dated 12-7-2005 submitted that since their sale price is inclusive of Erection and Commissioning charges and they are not discharging the said charges separately and the amount of said charges could not be reported separately. 4. The appellants were served with show cause notice dated 30-3-2007 proposing to recover the Service tax and Education Cess Rs. 8,13,41,574/- on the entire gross value charged by them from their customers for the manufacture, supply and Erection of textile machinery during the period 2-9-2003 to 31-12-206. The notice also proposed to confirm interest and impose penalty upon the appellants under the provisions of Section 76, 77 and 78 of the Finance Act, 1994. Extended period was invoked by alleging suppression with an intent to evade payment of service tax, inasmuch as the appellant did not disclose the info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd would have chosen to pay service tax on the said amount, the actual amount of duty paid by them would have been lower by an amount of Rs. 3.60 Lakhs approximately. Having paid the excise duty on the entire value, the appellant do not stand benefited. 7. As against the above arguments of learned advocate, learned SDR appearing for the Revenue reiterates the reasoning adopted" by the Commissioner in his impugned order by drawing out attention to the definition of Erection, Commissioning and Installation services. Learned DR submits that the appellants are duly covered by the same and having undertaken the said services at the buyers premises they are liable to pay duty. Learned DR has also drawn our attention to the judgment of the Tribunal in the case of Lincoln Helios (India) Limited v. Commissioner of Central Excise (Appeals), Bangalore - 2006 (1) S.T.R. 302 (Tri. - Bang.) wherein under the similar circumstances the appellants' liability to pay service tax on the installation and commissioning activities were upheld. Learned DR further submits that inasmuch as the appellants failed to give segregated amount collected for the purpose of erection and installation, the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire escape staircases or travelators; or (f) such other similar services; (III) From 1-5-2006 "erection, commissioning or installation" means any service provided by a commissioning and installation agency, in relation to' - (i) erection, commissioning or installation of plant, machinery, equipment or structures whether pre-fabricated or otherwise; or (ii) Installation of - (a) electrical and electronic devices, including wirings or fittings therefore; or (b) plumbing, drain laying or other installations for transport of fluids; or (c) heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, or (d) thermal insulation sound insulation fire proofing or water proofing (e) lift and escalator fire escape staircases or traveators; or (f) such other similar services. As is seen from the above, the one of the ingredients of the definition is that services must be provided by commissioning and installation agency. Admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sweep of the Section 2(f) (1) of Central Excise Act, 1944 and therefore, there can be no levy of service tax on the manufacturer in view of the clear postulate under Section 65(76b) of the Finance Act, 2005. Though the above judgment was given in the different facts and circumstances but we find that observations made by the Hon'ble High Court fully covers the legal issue in the present case. 12. Similarly in the case of CCE, Vapi v. Alidhara Textool Engineers Pvt. Limited - 2009 (14) S.T.R. 305 (T) = 2009 (239) E.L.T. 334 (Tri. - Ahmd.) it was observed as under :- "4.1 In this case erection and commissioning charges have been included in the cost of the machines sold. The appellants have selected the agency to do this work and once the purchaser enters into an agreement for supply of the machine including the erection and commissioning charges, the responsibility for erection and commissioning is of the manufacturer. Therefore what is happening in this case is that the supplier of the machine is not only selling the machine but is also providing the service of erection and commissioning. Once erection and commissioning cost is included, in the transaction value the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant ind machineries, duty commissioned, without showing any segregated amount recovered for erection and commissioning and where the entire contract value is taken as an assessable value for the purpose of payment of excise duty, no service tax is liable to be paid by the assessee. The decision of the Tribunal in the case of Lincoln Helios (India) Limited relied upon by the Commissioner in his impugned order laying to the contrary, cannot be followed inasmuch as the same stands rendered by a Single Member Bench in contradiction to the Divisional Bench judgment available in the case of Allengers Medical Systems Limited (referred supra). Further the said judgment in the case of Lincoln Helios (India) Limited was rendered in the year 2006 whereas the Allengers Medical Systems judgment stands passed in the year 2009, which stands passed after considering the Hon'ble Supreme Court judgment in the case of State of Andhra Pradesh v. Kone Elevators (India) Limited - 2005 (181) E.L.T. 156 (S.C.), as also Tribunal decision in the case of Idea Mobile Communications Limited v. Commissioner - 2006 (4) S.T.R. 132 (Tribunal). 15. In view of our above discussions, we hold that appellants we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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