LAWS(CAL)-2012-9-118

S K SAMANTA & CO LTD Vs. CUSTOMS,EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,EAST ZONAL BENCH,KOLKATA

Decided On September 13, 2012
S K Samanta And Co Ltd Appellant
V/S
Customs,Excise And Service Tax Appellate Tribunal,East Zonal Bench,Kolkata Respondents

JUDGEMENT

(1.) In this writ petition the writ petitioner has challenged an order No. S-667/KOL/2012, dated 16th July, : 2012 [2012 (28) S.T.R. 481 (Tri.-Kol.)] passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata, Eastern Zonal Branch (hereinafter referred to as 'the CESTAT') directing the petitioner to pre-deposit 25% of the Service Tax confirmed by the Order under appeal within a period of eight weeks from the date of the said order and to report compliance on 10th September, 2012 failing which the appeal of the petitioner pending before the CESTAT being Appeal No. S.T. 282/2009 would be dismissed. The petitioner carries on business of execution of EPC/Turnkey contracts. The contracts involves supply of plant, machinery and equipment on the one hand and construction, erection, installation, commissioning, design, engineering, transportation, port clearance etc. on the other hand.

(2.) According to the petitioner, the petitioner enters into separate agreements with its clients, one for supply of plant, machinery and equipment and the other for design, engineering, construction, erection and commissioning of the entire plant by using the said plant, machinery and equipment supplied under the first agreement.

(3.) Although two agreements are usually executed, the scope of the work is planning, designing, engineering, construction, fabrication, supply, erection, trial run and commissioning of the plant, which consists of civil, structural, electrical and mechanical works with allied auxiliary facilities such as ventilation, air conditioning, dust extraction and suppression, fire fighting, drinking water supply etc. It appears that both the agreements contain cross fall breach clauses specifying that breach of any one contract would constitute the breach of the other contract.