TMI Blog2018 (12) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... t transferred in his favour at the site of construction and erection. Above all it is admitted and acknowledged fact that execution of three separate agreements was the mandate of the bid of company itself. We, therefore, are of the firm opinion that value of this contract cannot be treated as the part of the gross-value for the entire work done by the appellant. Commissioning and Industrial Construction Services - Held that:- It is very much apparent that the technical specification, material for the projects were to be provided by the service recipient to the appellant. Relying upon the M/s Larsen & Toubro Ltd. (Supra) as above there is no doubt that the said contract is of work contract service altogether different from remaining two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal directed against the Order of Commissioner, Central Excise, Noida-II dated 28.04.2017. 2. The relevant facts for the purpose is that the appellant have centralized Service Tax Registration for providing services as that of Erection Commissioning and Installation services , Consulting Engineer s Service , Works Contract Services , Commercial or Industrial Construction Service and Goods Transport Agency Services . The department on information received by the officer of Anti-Evasion Branch of Service Tax Commissionerate, Delhi alleged evasion of payment of Service Tax by the appellant for rendering the works contract service. It is also alleged that appellant has wrongly classified the remaining service under ECIS and CICS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that except for the contract of commissioning and industrial construction service, both the remaining agreements have wrongly been alleged as work contract service. The value thereof has wrongly been proposed/ confirmed to be added into the gross-value for the appellants. It is submitted that agreement for supply of equipment is nothing but an agreement of sale and the agreement for installation thereof is the agreement for rendering Erection, Commissioning Installation Service. The appellant is separately discharging the liability even for the contract of Civil Construction, however, after availing the abatement as per the Notification in this regard the Adjudicating Authoritie s decision to deny the entitlement of the appellant to avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority below has considered the entire activity of the appellants arising out of the said three contracts as one single activity of work contract and, the demand has been proposed and confirmed on the gross-value of the total value of three of the contracts. For the better appreciation of the fact, we rely upon the decision of Larsen Toubro Ltd. (Supra). According to the said decision, it is an Indivisible works contact which can be classified as a works contract where the value of goods is not possible to be separated and that the property in goods stands transferred in favour of the service recipient at the site i.e. at the place of provision of Services. It was clarified that the liability to service tax to indivisible works contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turnkey may involve an activity or cluster of activities in the nature of services and such services may be provided during its execution - Discernible services may be advice, consultancy or technical assistance and classifiable under appropriate taxable service depending upon nature of activity - Section 66 of Finance Act, 1994. Composite contracts - Constitutional basis for divisibility - Article 366(29A)(b) read with Articles 286A and 246 of Constitution of India enable segregation of value of goods from different elements of service involved in composite contracts and segregated elements fall under respective fields of taxation - Segregation of service element from goods involved in turnkey or composite contracts permissible when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e supplied to the appellant vide a separate agreement. No question for this service to become work contract arises nor for adding the value of three of the contracts as to gross-value liability under works contract service as alleged. It is apparent and admitted fact that the appellant is otherwise discharging liability for three of these contracts separately. Order to this extent is also liable to be set aside. 9. Finally coming to the argument that the issue is no more Res-Integra as has already been decided by Larger Bench of the Tribunal in the case of M/s BSBK (Supra) and even has been upheld by the Hon ble Apex Court we are of the opinion that though the Commissioner has tried to distinguish the present matter but it is observed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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