TMI Blog2017 (5) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... n similar activities undertaken by the appellants in respect of other clients under the Purchase Orders/Contracts during the period 1997-1998 to 2001-2002? - Held that: - All contracts in the disputed period are similar to the contract produced by the appellant in case of IOCL - the demand under the category of consulting engineering service dropped. CBEC Circular NO.B.43/5/97-TRU dated 02-07-1997 does not deal with the services in the nature of works contract service where the Hon Apex court has held that no tax can be levied prior to introduction of works contract service. The assessee are not covered by definition of Consulting Engineer Service - appeal dismissed - decided against Revenue. - ST/7/2006 - A/10906/2017 - Dated:- 8-5-2017 - Dr. D. M. Misra, Member (Judicial) And Mr. Raju, Member (Technical) For Appellant: Shri Sameer Chitkara, Authorised Representative For Respondent: Shri J. C. Patel, Shri Rahul Gajera, Advocates ORDER Per Mr. Raju This appeal has been filed by revenue against the respondents Vijay Tanks Vessels Ltd (VTVL). VTVL are engaged in providing services to various clients including IOCL. SCN was issued to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not applicable to the extent case, as the same was given for context of the State Government's Powers to levy Sales Tax on the transfer of property in goods. It has also been argued that no finding on invocation has been given. 3 The learned counsel for the respondents argued that the Commissioner (Appeals) has examined all the aspects of the case. He argued that the facts of the case are identical to those in the case of M/s Daelim Industrial Company. He pointed out that Commissioner (Appeals) has examined the facts in great details in the impugned order. He further argued that the impugned order has compared the facts in the case of Daelim and the instant case. He took us through the comparison appearing in para 2 of the impugned order which reads as follows PARTICULARS DAELIM Case VIJAY TANK Case (present case) 1.Owner M/s. IOCL M/s. IOCL 2.Consultant M/s. Engineers India Ltd. M/s. Project Development India Ltd (PDIL) 3.Contractor M/s. Daelim Ind. Co. M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner in the impugned order is taken great pains to compare all aspects in the case of M/s Daelim Industries Company Ltd with that of the instant case. He further pointed out that the decision of this Tribunal in the case of Daelim Industries Company Ltd has been upheld by the Hon'ble Apex Court as reported in 2004 (170) ELT A 181 (SC) . He further argued that in the latest decision of Hon'ble Supreme Court in the case of Commissioner of Central Excise Customs, Kerala vs. Larsen Toubro Ltd. 2015 (39) STR 913 (SC) has held that the EPC contract of the kind entered into in the instant case are a separate species of contract distinct from contract for services. The Hon'ble Apex Court has observed that first kind services would be taxable only after interaction of the Works Contract Service in the Finance Act, 1994. 3.1 Ld. Counsel further relied on the decision of Tribunal in the case of Instrumentation Ltd. Vs. Commissioner of Central Excise, Jaipur-I 2011 (235) STR 221 (Tri.-Del.) wherein in the identical circumstances, it was held that for the period prior to 01.06.2007 such contracts would not be taxable under the Finance Act, 1994. He argued tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended period in the case and imposition of penalty on the appellants and on Shri Sundarrajan, Director, M/s Vijay Tanks Vessels Ltd. For examining these issues the commissioner (A) has relied on the decision of Tribunal in the case of M/s Daelim Industrial Company. 4.1 The respondents have also relied on the decision of decision of Hon'ble High Court in the case of C.S.T. Bangalore vs. Turbotech Precision Engineering Pvt. Ltd. 2010 (18) STR 545 (Kar.) upheld by the Hon'ble Apex Court in the case of Larsen Toubro Ltd (supra) to assert that no service tax can be demanded from them as they, being a company, do not fall under the category of 'Consulting Engineer'. In the case of Turbotech Precision Engineering Pvt (Supra) the following has been held 7. During relevant period, the definition of Consulting Engineer defined under section 65(31) reads as hereunder : consulting engineer means any professionally qualified engineer or an engineering firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering. Subsequently the defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is reproduced below PARTICULARS DAELIM Case VIJAY TANK Case (present case) 1.Owner M/s. IOCL M/s. IOCL 2.Consultant M/s. Engineers India Ltd. M/s. Project Development India Ltd (PDIL) 3.Contractor M/s. Daelim Ind. Co. M/s. Vijay Tank Vessel 4.Project Work Contract for Construction, Erection and Installation of Diesel Hydrodesulphurization (DHDS) Plant and Utilities Work contract for Supply cum Erection of 6 nos. LPG Storage Bullets.5. 5.Consideration Lumpsum, Turnkey basis for performing all works covered under contract. A break-up of lump sum amount has been indicated in the contract as price schedule. Lumpsum, Trunkey basis for performing all works covered under contract. Includes break-up of lumpsum amount as Price Schedule. 6.Clauses relating to drawings etc. 10.01 Drawin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited, M/s IOCL, Chennai. The impugned order clearly observes that - 15.1 On examining the matter, it is seen that there is no denial/ challenge from the side of the Department/Adjudication Authority about the contention of the Appellants that the activities in relation to which the demand for the period 1997-98 to 2001-02 was raised/confirmed were similar to the activity as in the IOCL Barauni case. This is also borne out from a perusal of some of the Contracts/purchase Orders, copies of which were produced by the Appellants during the proceedings, eg. Purchase Order No. A082/TEC/2001 Dated 18/04/2001 from M/s Elf Gas India Limited for Design, Drawing, supply of Material, Fabrication, Erection, Commissioning and Statutory approval of 18M Dia Propane Horton Spheres and Safety Valves at their mangalore plant for ₹ 10,90,78,000/-, Tender No. ENT:PT:RO:008:2000-2001 dated 16/10/2000 for Design and Construction of Retail Outlets at specified locations for M/s IOCL, Chennai on lumpsum turn key basis for ₹ 2,35,94,103/-,, Letter of Commitment No. REAL/MECH/PROJ/LOC/4 dated 11/04/2000 for Fabrication and Erection of Group-I and II (RTF,ATF, and RRTF) Tanks at RPL, Jamnaga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sign, Drawing and Detailed Engineering carried out by the respective parties are for execution of the said contract and are thus incidental/integral to their carrying out the project. In the case of M/s Daelim Industrial Company Tribunal had granted relief to the appellant. The decision in the case of M/s Daelim Industrial Company was also approved by Hon'ble Apex Court. 4.3 As against these findings in the impugned order the review has been ordered on the CBEC Circular NO.B.43/5/97-TRU dated 02-07-1997 in which while clarifying the scope of services falling under the category of 'Consulting Engineer', it is stated that the scope of the services of a consulting engineer may include anyone or more of the following categories (i) Feasibility study; (ii) Pre-design services/project report; (iii) Basic design engineering; (iv) Detailed design engineering; (v) Procurement; (vi) Construction supervision and project management; (vii) Supervision of commissioning and initial operation; (viii) Manpower planning and training; (ix) Post-operation and management; (x) Trouble shooting and technical services, inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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