TMI Blog2008 (11) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... na Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) Shri S.R. Prasad, SDR, for the Appellant. Shri Prakash Shah, Advocate, for the Respondent. [Order per: Archana Wadhwa, Member (J)]. - Being aggrieved with the order passed by Commissioner (Appeals), vide which he has allowed the appeal filed by the respondent and has set aside the duty confirmation against them on the ground that turnkey project entered into by the assessee cannot be bifurcated so as to hold that a part of the contract would fall under category of Engineering Services, leviable to Service Tax, Revenue has filed the present appeal. We have heard Shri S.R. Prasad, learned SDR for the Revenue and Shri Prakash Shah, learned advocate for the respondent. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. V/ST/01/IHI/AC/04, dt. 21-1-2004 wherein the Department sought to levy service tax upon them under Consulting Engineer's service on the basis that the Appellants had rendered design and engineering services for the purpose of the Project (both On-shore and Offshore services) which are taxable under the taxing entry for Consulting Engineer's services. The adjudicating authority under impugned order after going through the relevant clause of contract held that services provided by the appellants is clearly and explicitly categorized under Consulting Engineering services since the entire project has been clearly bifurcated and each and every stage of the project has been distributed between each member of Consortium therefore cannot be ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment milestone are separately identifiable, therefore cannot be categorized as turnkey basis. On the other hand, the appellants in their defence mainly stated that it cannot be disputed in any manner that the intention of the parties or the dominant idea of the contract is the completion and hand over of an operable and working LNG Re-gassification plant and no other and only upon which the final Acceptance Certificate which is only the bench mark in the engineering Procurement Construction Contract would be issued. The Final Acceptance Certificate is the only indicator in the contract which records the full and complete discharge of their/consortium's obligation under contract. However, the bifurcation of the scope of work has been undert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not proper and the same was accordingly set aside. 5. During the course of arguments, learned advocate for the respondent have drawn our attention to the majority decision in case of Jyoti Limited v. CCE Vadodara, 2008 (9) S.T.R. 373 (Tri-Ahmd.) wherein it was held that the composite contract cannot be vivisected and Tribunal's decision in case of BSBK (P) Ltd. 2007 (5) S.T.R. 124 (Tri.-Del.) was differed. Learned advocate has also relied upon other decisions of Tribunal in support of his plea that design element of work contract cannot be separately held liable to service tax under the category of consulting engineers. 6. After considering the submissions, we find that Larger Bench decision of the Tribunal in case of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
