TaxTMI 
TaxTMI 
2020 (9) TMI 837
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd accounts maintained by the appellant and on reconciliation with the ST-3 returns filed by the appellant, it appeared that the appellant had not paid service tax on some part of their turnover during the period 2011-12 to 2014-15 particularly in respect of service provided to organisations like Andhra Pradesh Power Generation Corporation (AP GENCO), Andhra Pradesh Tourism Development Corporation (APTDC), etc. It further appeared that in respect of service rendered to the aforementioned organisations under Notification No. 25/2012-ST the aforementioned recipient(s) did not fall under the category of Government/ local authority/ Government authority. As such, on this account, the appellant is liable to pay service tax of Rs. 97,63,710/-, pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder Section 77(2) of the Finance Act, 1994. 4. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals) who was pleased to dismiss the appeal in part upholding the order-in-original, but was pleased to reduce the penalty under Section 78 to 50%. 5. Being Aggrieved, the appellant is before this Tribunal. 6. As regards the first issue regarding the demand of Rs. 97,63,710/- under 'Works Contract Service', the question for determination is whether the appellant has provided service to Government/ local authority/ Government authority as per the exemption Notification No. 25/2012-ST. Learned Commissioner has observed that the service receivers are the following:- Sl. No. Name of the entity to which Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned order. He further goes to observe that - on consideration of the State organisation, I find that such organisation cannot claim to be State or Central Government in terms of clause (8) & (60) of Section 3 of the General Clauses Act, 1897, or local authority in terms of Clause 31 of Section 65B of the Finance Act, 1994. Therefore, there is no legal merit in the claim of the appellant that the service provided by them were to Government or local authority, and hence exemption is not available to them. 9. For further appreciation, we take notice of Sl. No. 12 of Notification No. 25/2012-ST which is as follows:- "12. Services provided to Government, a local authority or a Governmental authority by way of construction, erection, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....them the service tax paid by them, after 01.04.2015 (when the exemption was withdrawn), indicates that the State Government is the service recipient, prior to 01.04.2015, there is no tax liability. Reliance is placed on the ruling of the Apex Court in the case of Dilip Kumar & Company -2018 (361) ELT 577 (SC) wherein it has been held that the exemption notification should be interpreted strictly and burden of proving applicability / eligibility would be on the assessee who claims the benefit. Just because the State Government have considered the request of the contractors like the appellant and reimbursed the tax amount per se, would not conclusively indicate that the State Government is a service recipient. Learned AR further urges that th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... principal basis. There is no element of service provider and service receiver. There is no consideration defined in the builders / development agreement for any service. Thus, the transaction goes out of the purview of service tax. Reliance is placed on the ruling of Delhi Bench of this Tribunal in the case of Bairathi Developers Pvt. Limited -2016 (43) STR 455 (Tri. Delhi). Learned Counsel further urges that the Court below has relied upon Circular No. 151/2/2012-ST dated 10.02.2012 which was issued analysing the provisions as existing prior to 01.07.2012. It is further urged that there is no merit in relying on the Circular dated 10.02.2012, as the said circular clarified as regards point of taxation and valuation. Further, there have be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....extended period of limitation as per the provisions of Section 73 of the Finance Act, 1994. Reliance is placed by the Court below on Rule 9 of Point of Taxation Rules, 2011, is also of no use as Rule 9 clearly state that service for which provision is completed on or before 30th day of June, 2011 or whether the invoices issued and/or issued upto 30th June, 2011, the Point of Taxation Rules, shall, at the option of tax payer, be the date on which the payment is received or made. The Court below has erred in not referring to the option of the tax payer, while referring to Rule 9. Admittedly, in the facts of the present case provision of service was completed before 30.06.2011 and the invoices were also issued till that date. Thus, it is the o....