TMI Blog2018 (5) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... ical) Shri V Sridharan, Sr. Advocate for appellant Shri M K Sarangi, Joint Commissioner (AR) for respondent Per: C J Mathew This appeal of M/s Suzlon Energy Limited contests order-in- original no. 31-32/P-III/ST/COMMR/ 2012-13 dated 25 th March 2013 of Commissioner of Central Excise Service Tax, Pune-III and pertains to the confirmation of demand of ₹ 18,42,99,652 and ₹ 33,36,28,515/- for the period from 1 st June 2007 to 30 th September 2010 and from 1 st October 2010 to 30 th September 2011 as provider of 'design services' taxable under section 65(105)(zzzzd) and in accordance with the definition of the services in section 65(36b) of Finance Act, 1994 . In addition to interest on recovery, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the 'design service' would indicate that the legislature intended taxing only the service simpliciter. As the 'technical know-how' having been imported against bill of entry, being such imports within the frame work of 'design service' is not tenable. Reliance is placed on the definition of The Designs Act, 2000. 3. According to Learned Counsel for appellant, the decision of the Tribunal in Mitsui Co Ltd v. Commissioner of Central Excise Service Tax, Jamshedpur [2010 (18) STR 632 (Tri-Kolkata)] holds that '4. We find that in this case major portion of the demand is in respect of supply of imported designs and drawings. As per the Appellant the same were considered at the time of import of goods and bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with contract for wind generators. That bills of entry have been filed by the appellant is also a matter of records. 5. Learned Authorised Representative also places reliance on the decision in re Tata Consultancy Services. Reliance on the decision of the Tribunal, as upheld by the Hon'ble Supreme Court, in Oracle India Pvt Ltd, [final order no. A/52353 to 52333/2015-Cu (DB) dated 29 th July 2015] to contend that there is no prohibition of simultaneous levy under different taxing statutes. According to Learned Authorised Representative, the impugned order has categorically ousted the scope of levy as 'intellectual property service' owing to the existence of a more specific description in 'design service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contract was indivisible. All that has happened in law after the 46th Amendment and the judgment of this Court in Builders' case is that it is now open to the States to devide the works contract into two separate contracts by a legal fiction: (i) contract for sale of goods involved in the said works contract, and (ii) for supply of labour and service. This division of contract under the amended law can be made only if the works contract involved a dominant intention to transfer the property in goods and not in contracts where the transfer in property takes place as an incident of contract of service. The amendment, referred to above, has not empowered the State to indulge in a microscopic division of contracts involving the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter to the express provision contained in Article 366(29A) as also of the Constitution Bench decision of this Court in Builders Association of India and Others v. Union of India and Others (1989) 2 SCC 645. and in re Oracle India Pvt Ltd, the Tribunal held that '14. Coming to the contention that from 2008 OIPL was paying service tax on the licence fee paid by it to Oracle USA and therefore the value of the licence fee could not be added in the value of the media packs imported, we find that OIPL has relied upon the judgment of Supreme Court in the case o Imagic Creative Private Ltd. (supra) in support of this contention. The said judgment essentially laid down the ratio that payment of service tax and VAT are mutually exclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not only manufacture and sale of its products. It also erects and commissions the finished products. The customer is charged for the services rendered as well as the value for manufactured products. Admittedly, up to 20-6-2003 no service tax was leviable on erection and commission work It was only subjected to tax from 1-7-2003. The assessee has paid the excise duty on the value of the product notwithstanding the services rendered It is in that context, they were contending that there cannot be levy of tax under two parliamentary legislations. However, the excise duty was levied on the aspect of manufacture and service tax is levied on the aspect of services rendered. Therefore, it will not amount to payment of tax twice. After contestin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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