TaxTMI 
TaxTMI 
2022 (8) TMI 644
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by Income Tax authorities, Central Excise officers at Bhavnagar noticed that Appellant had not paid Service Tax of Rs.3,61,66,662/- from the years FY 2014-15 to 2017-18 [upto 30-06-2017]. Superintendent of Central Excise, Bhavnagar requested Appellant to provide details of Income receipts and to submit documents related to Service Tax paid, which was not responded by Appellant. Therefore, Show Cause Notice No. V/15-36/DEM/HQ/2020-21 dated 21-09-2020 demanding total Service Tax of Rs.3,61,66,662/- was issued. Appellant participated in adjudication proceedings, submitted documents and objected total demand of Service Tax. However, impugned Order-in-Original No. BVR-EXCUS-000-COMM-14-2021-22 dated 02-03-2022 confirmed demand of Rs. 1,59,56,741/- with interest and imposed penalties and also dropped total Service Tax demand of Rs. 2,02,09,921/-. Therefore, the said Appellant is before this Tribunal in Appeal. 3. Shri P. P. Jadeja, Learned Authorized Representative, appearing for the Appellant submits that demand confirmed in this O-I-O is not sustainable. He submits that Appellant have provided the services to Western Railway, which is a part of Ministry of Railway i.e. "Government". ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....D RESOURCES PVT LTD * CESTAT Order in VATSAL RESOURCES PVT LTD 3.3 Without prejudice to the above submissions, he submits that the Order is beyond scope of SCN. Demand of Service Tax confirmed is under specific activity heads in Order dated 02-03-2022, which are neither specifically mentioned nor proposed in Show Cause Notice dt. 21-09-2020. It is settled that Show Cause Notice is foundation of any case by Revenue and adjudication order beyond such SCN cannot be sustained, which is the settled law by plethora of decisions. 3.4 He also submits that O-I-O dated 02-03-2022 has not correctly appreciated fact that Appellant has provided services only to Government (Indian Railways), which have exemption under Notification No. 25/2012-ST dt. 20-12-2012. Appellant submit that adjudicating authority has confirmed demand of Service Tax on finding that services to Railways were not related to Original works. Appellant has given detailed clarification for their activities in Appeal where Service Tax demand is confirmed. Appellant is eligible for exemption under Sr. No. 12 of Notification No. 25/2012-ST, which allows exemption to the Repair and Maintenance of a civil structure of Governmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rrect to say that confirmation of demand by adjudicating authority is only on the basis of said shared data. Appellant have also filed their own documents related to services provided by them during adjudication proceedings of SCN and hence adjudicating authority has rightly passed this Order-in-Original. He submits that the classification of service is not relevant after 01.07.2012. He submits that activities for which demand is confirmed by adjudicating authority are not covered under the exemption Notification No. 25/2012-ST. He submits supply of manpower for cleaning Railway station and manage unmanned Railway crossing by "Gate Mitra" was only cleaning service and supply of manpower service, which are not eligible for exemption under Notification No. 25/2012-ST. He also Submits to uphold impugned O-I-O. 5. Heard both sides and perused the relevant records of the case. We find that in the facts of this case, the issue requiring our consideration is whether the demand of Service Tax as confirmed with Interest and penalties by the Adjudicating Authority is sustainable or otherwise. We find that there is no dispute on the facts on either side that Appellant have provided services ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....olidated Tax Statements. Income Tax and Service Tax are two different & separate and independent special Central Acts and their provisions are operating in two totally different and independent fields. By relying on 26AS/TDS Statement/ 3CD statement under the Income Tax Act 1961, demand of Service Tax cannot be made. We note that Tribunal Decision in case of Synergy Audio Visual Workshop Pvt Ltd V/s C.S.T. - 2008 (10) S.T.R. 578 (Tri. - Bang.), has held as under: "The other ground is for confirming demands is that the appellants had shown certain amounts due from the parties in their Income Tax returns and Revenue has proceeded to demand Service Tax on this amount shown in the Balance Sheet. The appellants have relied on large number of judgments which has settled the issue that amounts shown in the Income Tax returns or Balance Sheet are not liable for Service Tax. In view of these judgments, the appellant succeed on this ground also. The impugned order is set aside and the appeal is allowed." The Tribunal in the case of Calvin Wooding Consulting Ltd. Vs. CCE, Indore reported in 2007 (7) S.T.R. 411 (Tri. - Del.) has also held as under: "21. The liability of the recipient cann....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Further the data provided by the Income Tax Authorities does not appear processed in terms of the Section 36A or 36B of Central Excise Act 1944, made applicable in Service Tax matters by section 83 of Finance Act 1994. Section 36A and 36B of Central Excise Act 1944 clearly provide a safety net before use of the electronic data or computerized documents. In this case, provisions of Section 36A and Section 36B does not appear satisfied as conditions imposed does not appear followed by Central Excise department. Hence, shared data by Income Tax department cannot be used against Appellant without independent inquiry/investigation carried by the Revenue. Therefore, demand of Service Tax confirmed with interest and Penalty by the adjudicating authority also deserves to be set aside on this ground. 5.2 As regards, Order beyond SCN, it is submitted on behalf of the Appellant that Demand of Service Tax confirmed is under specific activities in impugned order dated 02-03-2022, which are not specifically proposed in Show Cause Notice dated 21-09-2020. We also note that it is settled that Show Cause Notice is the foundation in case of revenue for the levy and the recovery of duty or Service T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctivity of Appellant is covered under which specific clause of services described in Finance Act 1994. Following case laws substantiate view that Show cause notice is the foundation in the matter of levy and collection/recovery of duty, penalty and interest; Revenue cannot argue case not made out in show cause notice and; that Department cannot travel beyond show cause notice and that party to whom Show Cause Notice is issued must be made aware of allegations made against it and that this is a mandatory requirement of natural justice. Unless Appellant is put to such specific notice, he has no opportunity to meet the case against him:- * 2006 (201)ELT-513(S.C.) - CC v. Toyo Engineering India Ltd. * 2007 (215)ELT-489(S.C.) - CCE v. Ballarpur Industries Ltd. * 2008 (232)ELT-7 (S.C.) - CCE v. Gas Authority of India Ltd. * 2009 (241)ELT-481(S.C.) - CCE v. Champdany Industries Ltd. * 2016(334)ELT-577(SC)-Precision Rubber Industries (P) Ltd v/s CCE * 2018 (10) GSTL- 479 (Tri. - Mumbai) - Swapnil Asnodkar * 2011 (22) STR- 571 (Tribunal)-United Telecoms Ltd. * 1997 (94) ELT- 289 (S.C.) -Kaur & Singh v. C.C.E., New Delhi 5.3 The aforesaid decisions clearly hold that it is im....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erable unmanned level crossing on SUNR-LMO section of SSE(PW) WC & DLJ and LMO- PPVS&RLA-MHV sections for 12 months. Adjudicating authority has treated this activity as 'Manpower Recruitment supply/Agency service'. Therefore, O-I-O has held that Appellant is liable to pay service tax on this activity and denied exemption under Notification No. 25/2012-ST. Appellant has submitted that they are not engaged into providing any manpower only as a "Manpower Recruitment Agency/supply service" and that their contracts were to maintain unmanned railway crossings. We find this activity is services of Maintenance of unmanned crossing of Indian Railways. Activities performed by Appellant under contract was to maintain unmanned Railway crossings primarily for safety. Therefore, activity by Appellant is not supply of manpower as such, but, it is maintenance of unmanned railway crossings, which is covered under the ambit of Maintenance of the unmanned Railway crossings. We also find that Maintenance Service is defined to mean any service provided by any person under contract or agreement in relation to maintenance of properties, whether immovable or not, excluding a motor vehicle. Appellant is ne....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s provided service of cleaning of station during F.Y. 2014-15 which is liable to Service Tax and O-I-O has confirmed Service Tax demand. Appellant submitted that they have provided service to Railways for Maintenance of Station by way of picking rags etc which is Maintenance by cleaning of Railway Station. Cleaning of Station is included in the activity of Maintenance of station. We also note that Services of maintenance including maintenance or repair of properties, whether immovable or not were introduced w.e.f. 01-07- 2003 by the Notification No. 7/2003-ST dated 20-06-2003 and "Cleaning Services" of commercial or industrial buildings and premises thereof were introduced w.e.f. 16-06-2005 by Notification No. 15/2005- ST dated 07-06-2005. Services of "maintenance or repair" is covered u/s 65(105)(zzg) of Finance Act 1994 w.e.f. 01-07-2003 whereas the activity of "cleaning Service" is covered under Section 65(105)(zzzd) of the Finance Act 1994 w.e.f. 16-06-2005. However, "Cleaning Service" covers commercial or industrial buildings and premises thereof or factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and premises thereof. But, Railway stat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ication of taxable services. It is settled law that activity shall be classified of a service which gives a service essential character, as per section 65A ibid as it is applicable. The activity of maintenance, repairs are distinct and separate taxable services listed under Sr. No. 12 of Notification No. 25/2012-ST. Hence, O-I-O is not in accordance with provisions of Finance Act 1994. Sr. No 12 of Notification 25/2012-ST allows exemption in respect of repair and maintenance of a civil structure. Therefore, services of Appellant were to Railways (Western), for Repairs and Maintenance is eligible for the above exemption. 5.7 We observe that it is held in catena of cases that Tribunal being a final fact finding authority can admit any fresh evidence and also argument. This issue has been considered by the Hon'ble Supreme Court (Three Judges Bench), in the case of National Thermal Power Co. Ltd. v. Commissioner of Income Tax, in 1998 (99) E.L.T. 200 (S.C.), which is to the effect that the Tribunal has jurisdiction to examine question of law which arises on facts, as found by authorities below, and having bearing on tax liability of assessee, even though said question was neither rais....