Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1320

Laying of GRP pipes - whether Erection, Commissioning & Tnstallation service?

Case: M/s Strategic Engineering Pvt. Ltd. Manamadurai v/s Additional Commissioner Central Excise, Madurai
 
Citation: 2011-TIOL-547-HC-MAD-ST
 
Issue:- Laying of GRP pipes before 16.06.2005 – not covered under ‘Erection, Commissioning & Installation’ service.
 
Issue raising pure question of law – Writ petition against Adjudication order maintainable even when alternative statutory remedy available.
 
Brief Facts:- Petitioner-company were engaged in manufacture of FRP Pipes falling under Chapter No. 7014.00 of the Central Excise Tariff. Petitioner were also carrying on the business of laying of GRP Pipes to its customers and were receiving labour charges from them. The GRP Pipes are laid inside the trench in case of underground-buried construction. The buried pipe laying activity involves trenching, bedding and laying inside the trench and aligning appropriately. The pipe lowering into the trench is executed by two men using ropes and anchored to stakes. Erection of pipes involves connecting the laid pipes and subjecting the pipes to carry fluids. This activity is done by the customers as per their own needs and requirements.
 
Department issued show cause notice to the Petitioner demanding service tax by categorising labour charges under ‘Erection, Commissioning & Installation’ service and the service rendered to non-resident clients by Petitioner was categorised under ‘Scientific or technical Consultancy service’.
 
The Adjudicating Authority confirmed the demand. Petitioner filed writ petition under Article 226 of the Constitution against the impugned order.
     
Appellant’s Contention: - With regard to maintainability of writ petition, the petitioner has placed reliance on judgment of the Division Bench of the High Court, in the case of Sri Palani Dhandayuthabani Devasthanam vs. Commercial Tax Officer, Palani Circle II, Palani [2001-(ST4)-GJX-0280-MAD.] in support of the contention that after the admission of the writ, the court should normally hear the case on merit.
 
Petitioner has submitted that the service provided by them did not fall under the head 'Commissioning and Installation services'. For this reference was made to the definition given under Section 65(28) of the Finance Act 1994 as it stood before amendment.
 
Respondent’s Contention:- Revenue contended that as per the contract order dated 12.09.2003, the petitioner was to render the services of fabrication, erection, alignment and hydro-testing of GRE piping at the LGN Terminal Site, Hazira of M/s. Petron Engineering Constructions Ltd. GRP Piping is an integral part of a plant or extension of a plant which includes machinery. The said piping was to provide fluid for the operation of the plant and machinery at the above mentioned site. Without the impugned piping, the plant comprising machinery is not complete and cannot be commissioned for operation of the intended purpose. Therefore, the contention of the petitioner that laying of pipes is not a plant, machinery or equipment is not sustainable.
 
It was submitted that service tax was levied on "commissioning and installation of plant, machinery and equipment" with effect from 01.07.2003. The general practice in the trade and industry is that 'erection, commissioning and installation' are contracted as a composite package. The Central Board of Excise and Customs vide Circular No.80/10/2004-ST dated 17.09.2004 had clarified that in case of a composite contract for erection, commissioning and installation, the erection charges would be taxed as part of commissioning and installation service.
 
Reasoning of Judgement:- On the issue of maintainability of writ petition the High Court held that at this stage it would not be appropriate to relegate the petitioner to alternative statutory remedy as the Revenue was asked to file counter on the merits of the case. It was also noted that the issue involved was purely legal issue, the Court can decide the case on merits.
 
On merits, it was noted that the laying of GRP pipe did not fall under Section 65 (28) of the Finance Act, 1994.
 
After perusal of amended provisions i.e. new Section 65 (39a), it was held that plumbing, drain laying or other installations for transport of fluids etc., was included in the definition of 'erection commissioning or installation', for the first time, on 16th June 2005.
 
The High Court noted that the Revenue had raised the demand by treating the work of the petitioner to be execution of works contract. Accordingly, it was held that the plea of the respondent is to be rejected as the work contract was first time included under service tax net w.e.f. 1st June 2007 under Section 65 (105) (zzzza) of the Finance Act, 1994.
 
The High Court in the end held that from the facts it is clear that the demand raised against the petitioner is not sustainable in law, as the period for which the demand has been raised does not cover the services of the petitioner for imposition of service tax. It was held that the show cause notice as well as the impugned order were the outcome of misreading of provisions of the Finance Act, 1994, which are not sustainable. Impugned order is quashed.
 
Decision:- Writ petition allowed.
 
Comment:- This is very good decision wherein it was held that if the definition is amended and its area is expanded then the addition will be effective from that day only. Further, it falls under another category and this is effective from particular date then the demand can be made from that date only. This is very good decision.
 
But we have come across certain decision wherein the Tribunal is saying that if the work is coming under “work contract” then earlier it was covered under “commercial construction activity”. Hence the service tax is payable under that category. Though in certain other decisions, it has held that if it is covered under works contract which has come into force from 1.6.2007 then it is not chargeable to duty under any other category prior to 1.6.2007.

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