TaxTMI 
TaxTMI 
2019 (1) TMI 1441
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....l year 2005-06 to 2009-10. From the information gathered, the Department observed that the appellant was executing works contracts qua various activities as: (i) Repair Maintenance of Heritage Sites (ii) Commercial and Industrial Construction (iii) Construction of Complex Services (iv) Erection, Installation and Commissioning Activities Resultantly, a SCN No. 11540 dated 13.10.2011 was served upon the appellant denying the benefit of Notification No. 12/2003 dated 20.06.2003 due to the failure of the appellant to submit the documentary evidence regarding value of the material sold during the course of provision of service and thus proposing the recovery of service tax amounting to Rs. 3,28,54,033/- alongwith the interest at the appropriate rate in terms of the Section 75 of the Finance Act and the proportionate penalties under Sections 76, 77 and 78 of the Finance Act, 1994. The said SCN was adjudicated by Commissioner vide Order No. 39/2012 dated 29.10.2012 vide which demand of Rs. 1,48,68,106/- (out of Rs. 3,28,54,033/-) was ordered to be recovered from the appellant alongwith the penalty under Section 78 of the Act at the rate of 25% of the aforesaid recovery. Pen....
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.... extent of Rs. 1,29,43,403/- stands discharged by the main contractor hence the confirmation of demand of service tax upon the sub contractor is not sustainable which being a case of double taxation. The case laws as relied upon are: Global Vectra Helicorp Ltd. Vs. C.S.T., Mumbai - II 2016 (42) S.T.R. 118 (Cestat, Mumbai), Madhukar Mittal Vs. C.C.e., Panchkula 2015 (40) S.T.R. 969 (Cestat, Delhi) C.S.T., Mumbai - II Vs. Skypack Service Specilaities Ltd. 2015 (37) S.T.R. 281 (Cestat, Mumbai). 2.4 It is further submitted that cum-tax benefit has not been given to the appellant. The findings of the Adjudicating Authority below are therefore prayed to be set aside. Finally impressing upon that there is no apparent suppression of facts on the part of the appellant with an intention to evade the payment of tax as such the Department was not entitled to invoke the extended period of limitation. The demand beyond a normal period of one year from the date of SCN is liable to be set aside on this score itself. The case laws as relied upon are: Kingfisher Airlines Ltd. Vs. C.S.T., Mumbai - I 2015 (40) S.T.R. 1159 (Cestat, Mumbai), C.C.E. Mumbai Vs. Jubilant Enpro (P) Ktd 201....
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....ing and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or (d) Repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit; Which Is - i) Used, or to be used, primarily for; or ii) Occupied, or to be occupied, primarily with; or iii) Engaged, or to be engaged, primarily in commerce or industry or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams." Bare perusal makes it clear that for any service to be taxable under Section 65(25B) it has to be the work which is intended for commerce or industry. The restoration of Ghat ki Guni is observed, from record, to be a work order awarded to the appellant by Amber Development and Management Authority, Jaipur vide work order dated 03.09.2009. The said work was to be executed for and on behalf of the Government and under the supervision of Executiv....
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....public road as : "public road means any road, street or thoroughfare or any other place (whether a thoroughfare or not) which is commonly used by the public or ay section thereof or to which the public or any section thereof has a right of access and includes - (a) The verge of any such road, street or thoroughfare; (b) Any bridge, ferry or drift traversed by any such road, street or thoroughfare, and (c) Any other work or object forming part of or connected with or belonging to such road, street or thoroughfare;" Perusal clarifies that roads/ drains/ pipelines as executed by the appellant are the roads for use by general public which fall under exclusion part of the definition of Commercial and Industrial Construction. 6.1 We observe that the adjudicating authority below has held few of the roads /drain/pipeline construction as taxable and remaining others as non taxable but the distinction as created in these roads/ drains/ pipelines to be public or non public is opined incorrect in view of all of those qualifying the above definition of general public/ public roads. The findings of the Commissioner confirming tax liability for conservation and....
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....0) STR 815 wherein it was held that the construction of residential complex for ITC (in that case) intended to provide accommodation built for own employees, it was held that activity was covered by definition of personal use in explanation to Section 65(91A) of Finance Act, 1994. Hence, the assessee's activity falls under exclusion of that Section and as such is excluded from levy of service tax. 7.2 In the present case, the quarters/ residential complexes were got constructed by the appellant for three different Departments of Government of Rajasthan for being used as accommodation for their own employees, the same amounts to 'personal use'. The confirmation of demand qua these services by the Commissioner is therefore not sustainable, accordingly is set aside. 8. For the activity at serial no. (f) above: We observe that though the milk chilling plant was run by Rajasthan State Government but the fact remains is that the plant was selling milk on commercial basis against the profit. In view of said apparent fact, it cannot be held that the State Government was discharging some sovereign function and as such exemption from taxability is not available because irrespective ....
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....e neutrality. The Order to that extent is also therefore set aside. 10. The another line of argument is the entitlement to abetment: Appellant on this issue has submitted that they have executed the works of Erection, Commissioning and Installation which are work contracts in nature as they simultaneously have provided the material used for the said execution. It is impressed upon that the appellants in the given circumstances were entitled for abetment under Notification No. 1/2006 dated 01.03.2006 which has wrongly been denied by the adjudicating authority below. The DR on the other hand, has submitted that Commissioner has given valid reasons about the conditions of the said Notification to not have been fulfilled as a ground for declining the said benefit. Resultantly, there is no error apparent in those findings. 10.1 After hearing both the parties on this issue we observe that the benefit of the abetment Notification or even of composition scheme in respect of Commercial or Industrial Construction Service or Construction of Complex Service and Erection, Commissioning or Installation Service is available subject to the following conditions: (i) Gross amount charged in....
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....of the admitted facts as mentioned above there is sufficient compliance by the appellant qua the substantial liability as laid in the Notification relied upon is concerned. Mere lack of sending an intimation is a procedure which is mere directry. Denying the substantial benefit to the appellant on merely a procedural lapse is unjustified on the part of the adjudicating authority below. In the present case, it is not the contention of the Department that the option for availing the benefit of said Notification has ever been withdrawn prior the completion of the work contract. Resultantly, the absence of intimating the option prior payment of the service tax qua the said work contract is in any way not prejudicial to the interest of the revenue. Hence, cannot be held to be a substantive loss but a mere procedural lapse. 10.4 As far as the second ground of declining the benefit of the impugned Notification is concerned, we are of the opinion that ground is absolutely wrong at its face. The Order under challenge itself contains a meticulous calculation about each and every work order / work contract executed by the appellant and the precise amount involved therein. Had no documents ....
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.... of sub contractor. The discharge of liability qua contractor and sub contractor has way back been clarified by the Department itself vide their CBEC Circular No. 96/7/2007 - ST dated 23.08.2007 vide which it was clarified that sub contractor is essentially a favourable service provider and is liable to pay service tax. The fact that services provided by such sub contractor are used by the main service provider for completion of his work does not in any way alter the fact of provision of taxable service by a sub contractor. Services provided by sub contractor are in the nature of input services. Service tax is therefore leviable on any taxable service provided whether or not the services are provided by a person in his capacity as a sub contractor or whether or not such services are used as input services. The fact that a given taxable service is intended for use as an input service by another service provider does not alter the taxability of the service provider. Such proposition finds support from the basic rule of cenvat credit and service of a sub contractor may be input service provided for a contractor if there is integrity between the services. Thus tax paid by a sub contact....