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Consult Construction

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Services of Erection, Commissioning & Installtion

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CESTAT stays full recovery of service tax demand of Rs. 65 Cr on 38 agreements between assessee and foreign companies for services of erection, commissioning, installation of equipment, sales promotion, marketing; Adjudicating Authority’s action of confirming demand under ‘Erection, Commissioning and Installation Service’ by extrapolating findings based on perusal of only 5 contracts not legally sustainable, when assessee demonstrated that some contracts were for sale of goods; Rejects Revenue’s contention that no sale involved absent mention of sales tax on invoices, observes, "whether the transaction involved sale is to be determined on the basis of the nature of transaction and not whether the sales tax had been paid on it . . . merely because somebody evaded sales-tax, it would not mean that the transaction would not be a sale, even if, it satisfied the definition of sale"; Relies on Modi-Mundipharma Pvt. Ltd ratio to observe that transfer of ‘right to fabricate products’ not taxable since service not liable to tax during relevant period, notwithstanding the fact that payment continued after service becoming taxable; As regards charges paid to overseas entities for maintenance of software, CESTAT finds force in assessee contention that since service performed & consumed outside India, prima facie there is no ‘import’ : Delhi Tribunal
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