Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2539

Construction of pipeline works for government not leviable to service tax.

Case:-BHOORATHNOM CONSTRUCTION CO PVT LTD VS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, HYDERABAD
 
Citation:-2015-TIOL-61-CESTAT-BANG
 
Brief Facts:-The appellant is engaged in the business of construction or execution of infrastructure projects exclusively for various State Governments and related Government departments. After investigation and search proceedings, proceedings were initiated which has resulted in the impugned order that confirmed demand for service tax of Rs. 29,79,61,129/- with interest on the ground that appellant has provided works contract service and the same is liable to tax. Besides this an amount of Rs. 34,63,237/- has also been demanded under GTA Service as a receiver of services for the period from January 2006 to December 2010 and penalties also have been imposed.
 
Appellant’s Contention:-Learned counsel for the appellants submitted that appellants have engaged in construction of pipeline works for irrigation for the State Government departments and in all these cases where pipelines and canals or conduits have been constructed, the Tribunal has been taking a view that the same is not liable to service tax. He also submits that as regards certain other work undertaken, they are civil construction work and civil construction work when it is not meant for commerce or industry is not liable to service tax. As regards GTA service, he submits that appellants have deposited an amount of Rs. 30,00,000/- and in view of the fact that appellants have a strong case on merits as regards limitation, the requirement of pre-deposit of balance dues can be waived in this case. Overall he submits that the requirement of pre-deposit may be waived.
 
Respondent’s Contention:-Learned AR opposes the submission and submits that in the case of Ramky Infrastructure Ltd. Vs. CST, Hyderabad [2013 (29) S.T.R. 33 (Tri.-Bang.) = 2012-TIOL-613-CESTAT-BANG], this Tribunal has taken a view that service tax is liable in the case of EPC/Turnkey projects and whether the construction is of a pipeline or canal or civil construction does not make any difference if the project is executed on Turnkey/EPC basis tax is payable.
 
Reasoning of Judgment:-We have considered the submissions made by both the sides. No doubt in the case of Ramky Infrastructure Ltd. such a view was taken. However the learned counsel relied upon the decisions in the case of Megha Engineering & Infrastructure Ltd. dated 31.12.2013 vide Miscellaneous Order Nos. 2830828311/ 2013 = 2014-TIOL-134-CESTAT-BANG and Koya & Company Construction Ltd. Vs. CCE, Hyderabad-I [2014 (34) S.T.R. 780 (Tri.-Bang.). In both these cases the Tribunal took the view that when a pipeline or a canal is constructed, the same is not liable to tax if it is not meant for commerce or industry. In the case of Megha Engineering & Infrastructure Ltd., the Tribunal had observed that construction of pipeline primarily for the purpose of commerce or industry falls within the definition and the services provided by the petitioner in that case under several agreements with the State Government were for irrigation or drinking water supply purposes and therefore were excluded. We have a similar situation here. Moreover in most of these cases the appellants have undertaken only work relating to part of the pipeline and therefore it is difficult to call them Turnkey or EPC projects. Moreover it is also not clearly coming out that the design and engineering part of the project was completely executed by the appellant especially in view of the fact that only part of the pipeline was constructed by them. As regards civil construction work also, the contention of the appellant that just because a contract is termed as EPC or Turnkey project, the same cannot be held conclusively against the appellant. The contract has to be examined to see whether it is in reality an EPC project or not. We find some substance in this argument since Hon'ble Supreme Court also has taken a similar view that terms used in the contract should not be looked at in isolation or interpreted literally. If the contract is accepted literally and no examination is done in a holistic manner, it is quite possible that contracts can be termed in such a manner so as to ensure that appropriate terms are used so that tax liability is avoided. In view of the fact that two decisions of the Tribunal prima facie have taken a view in favour of the assessees referred to by the learned counsel, we consider it appropriate that the same should be followed in this case also. As regards GTA service the appellants have deposited an amount of Rs. 30,00,000/- but we feel that this would not be sufficient for hearing the appeal.

Appellant is directed to deposit an amount of Rs. 5,00,000/( Rupees Five lakhs only) within 8 weeks and report compliance on 2.12.2014. Subject to compliance with the above requirement, the requirement of pre-deposit of balance dues is waived and stay against recovery is granted.

Decision:-Stay partly granted.
 
Comment:-The essence of the case is that just because a contract is termed as EPC or turnkey project, it cannot be held conclusively against the appellant and the terms and conditions of the contract are to be examined in detail. In the present case, as the appellant had only executed construction of part of pipeline for state government department, it cannot be considered as EPC or turnkey project so as to levy service tax. Moreover, there were number of decisions given by the Tribunal wherein it was concluded that construction of pipeline for irrigation systems meant for government departments could not be considered as commercial in nature so as to levy service tax on the same. Consequently, stay was granted with respect to service tax demand on construction of pipeline.

Prepared By:- Somya Jain

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com