1. Value of goods sold to be excluded while determining value of services provided for availing ‘Small Service Provider’ exemption:
CCE Ludhiana vs. Amarjit Aggarwal & Co.
CESTAT New Delhi – Final Order No. ST/207/2011 (PB) – Appeal No. ST/248/2008
(i) Department levied service tax on assessee by classifying services under ‘Maintenance & Repairs’ for period up to 15-6-2005 and as ‘Cleaning Services’ for the period thereafter.
(ii) Arguments made by the assessee : (a) contract with clients exhibited that there was an element of sale of goods being incorporated in different services; (b) demand was confirmed without properly determining value of services; (c) once value of goods sold is excluded, value of service rendered would be below the limit of small service providers exemption; (d) same service could not be classified under two different categories – Commissioner (Appeals) held in favour of assessee –
(ii) HELD : Department has filed appeal without considering basic plea of assessee. Appeal perfunctorily against small service provider. Department’s appeal was dismissed.
2. Important principles on distinction between “contract for sale of goods” and “works contract” explained:
A Constitutional Bench of 5 Judges of the Supreme Court had to consider whether the law laid down by a three-Judge Bench in State of A.P. v. Kone Elevators (India) Ltd (2005) 3 SCC 389 that a contract for manufacture, supply and installation of lifts in a building is a “contract for sale of goods” and not a “works contract” is correct or not. HELD by the Constitution Bench over-ruling the three-Judge Bench judgment:
(i) In the case of a “contract for sale of goods”, the entire sale consideration is taxable under the sales tax or value added tax enactments of the State legislatures. In the case of a “works contract”, the consideration paid for the labour and service element has to be excluded from the total consideration received and only the balance is chargeable to sales tax or value added tax;
(ii) Four concepts have clearly emerged from the numerous judgments of the Supreme Court on the point. They are
(a) the works contract is an indivisible contract but, by legal fiction, is divided into two parts, one for sale of goods, and the other for supply of labour and services;
(b) the concept of “dominant nature test” or, for that matter, the “degree of intention test” or “overwhelming component test” for treating a contract as a works contract is not applicable;
(c) the term “works contract” as used in Clause (29A) of Article 366 of the Constitution takes in its sweep all genre of works contract and is not to be narrowly construed to cover one species of contract to provide for labour and service alone; and
(d) once the characteristics of works contract are met with in a contract entered into between the parties, any additional obligation incorporated in the contract would not change the nature of the contract;
(iii) The “dominant nature test” or “overwhelming component test” or “the degree of labour and service test” are really not applicable. If the contract is a composite one which falls under the definition of works contracts as engrafted under clause (29A)(b) of Article 366 of the Constitution, the incidental part as regards labour and service pales into total insignificance for the purpose of determining the nature of the contract;
(iv) On facts, the three-Bench judgement erred in taking the view that the major component was the equipment and that the skill and labour employed for converting the main components into the end product were only incidental. The principal logic applied, i.e., the incidental facet of labour and service is not correct because in all the cases, there is a composite contract for the purchase and installation of the lift. The price quoted is a composite one for both. Various technical aspects go into the installation of the lift. There has to be a safety device. In certain States, it is controlled by the legislative enactment and the rules.
In certain States, it is not, but the fact remains that a lift is installed on certain norms and parameters keeping in view numerous factors. The installation requires considerable skill and experience. The labour and service element is obvious. The preparatory work has to be done taking into consideration as to how the lift is going to be attached to the building. The nature of the contracts clearly exposit that they are contracts for supply and installation of the lift where labour and service element is involved. Individually manufactured goods such as lift car, motors, ropes, rails, etc. are the components of the lift which are eventually installed at the site for the lift to operate in the building. In constitutional terms, it is transfer either in goods or some other form.
In fact, after the goods are assembled and installed with skill and labour at the site, it becomes a permanent fixture of the building. However, if there are two contracts, namely, purchase of the components of the lift from a dealer, it would be a contract for sale and similarly, if separate contract is entered into for installation, that would be a contract for labour and service. But, a pregnant one, which is a composite contract for supply and installation, has to be treated as a works contract, for it is not a sale of goods/chattel simpliciter. It is not chattel sold as chattel or, for that matter, a chattel being attached to another chattel.