Page 97 - GSTL_16 April 2020_Vol 35_Part 3

2020 ] TATA PROJECTS LIMITED v. COMMISSIONER OF SERVICE TAX, HYDERABAD 311
2. Ld. Counsel submits that in the present appeal, 14 projects executed
by them are involved. In 13 of the 14 projects, the execution of works under the
contract has commenced and/or payment towards performance of the contract
has been received prior to 7-7-2009. Therefore, they were not liable to include the
value of the goods supplied under the projects in the value of taxable services
provided. In respect of 14th project, they had actually paid the Service Tax in ex-
cess of the amount computed in the show cause notice as can be seen from An-
nexure-I to the show cause notice dated 21-10-2013 at page 33 of the appeal
memorandum. Therefore, there is no case for demand. He submits that identical
case in respect of the same appellant in Appeal No. ST/22281/2018, this Bench
vide Final Order No. A/30112/2019, dated 9-1-2019 held that the value of goods
need not be included in the value of works contract service for cases prior to 7-7-
2009. The ratio applies to this case as well.
3. Ld. DR reiterated the findings of the lower authority and explains
that the appellant had entered into contracts for providing services on works
contract basis but have not included the value of the goods in these contracts and
hence a show cause notice was issued and demands were confirmed along with
interest and penalties. Of the 14 projects, in one of the projects, there is no de-
mand in the show cause notice. Of the remaining 13 projects, 10 have distinctive
contract for supply of goods and for provision of services. In respect of the re-
maining 3 projects, there was single contract divided into three activities namely
supply of equipment, erection and civil works. He prayed that the appeal may be
rejected.
4. On examination of the matter, we find that the department seeks to
include the value of goods supplied either under a different contract or as a sepa-
rate part of the same contract in the value of taxable services on which service tax
on works contract service is to be charged. We find that on an identical issue in
respect of the same assessee in Appeal No. ST/22281/2015, after examining the
amendment to Works Contract (Composition Scheme for Payment of Service
Tax) Rules, 2007 vide Notification No. 23/2009-S.T., dated 7-7-2009 and the ex-
planation of the amendment by C.B.E. & C. vide D.O.F. No. 334/13/2009-TRU,
dated 6-7-2009 as discussed above, we held that appellant is not liable to include
the value of the goods as the contracts were signed/payments were made prior
to 7-7-2009. We find no reason to deviate from our earlier decision. This covers 13
of the 14 projects in respect of which the demand was raised. In respect of the
14th project namely project with respect to SALSETTE Borivli BMC, which was
entered post-7-7-2009, we find from Sl. No. 10 in Annexure-I to the show cause
notice the differential tax payable, according to the show cause notice, is nega-
tive. Therefore, no Service Tax is payable. In conclusion, the demands as con-
firmed by the impugned order are liable to be set aside and we do so. Conse-
quently, the interest and penalties associated with the demands are also set aside.
5. The appeal is allowed and the impugned order is set aside.
(Operative portion of the order pronounced in open Court
on conclusion of hearing)

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GST LAW TIMES  16th April 2020  217