TaxTMI 
TaxTMI 
2022 (8) TMI 645
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.... meant for self use or for use of their employees. The contention of the adjudicating authority that the claimant had provided the services to M/s. Gujarat State Police Housing Corporation Ltd. (GSPHCL) is a company and not a Governmental Authority hence, the exemption is not applicable. He also submits that since the appellant have not produced evidence of not passing on any incidence of service tax the principles of unjust enrichment does not satisfy itself instead. Being aggrieved by the Order-In-Original, the appellant filed the appeal before the Commissioner (Appeals) who rejected the appeal on limitation as well as on merit holding that the appellant have filed appeal with the delay of 24 days and no sufficient reason was given for the delay. As regard the merit, the learned Commissioner (Appeals) also of the view that the service provided to GSPHCL is not to the government or government authority. Being aggrieved by the Order-In-Appeal impugned, the appellant filed the present appeal. 02. Shri Amit Laddha, learned counsel appearing on behalf of the appellant submits that the appellant has given sufficient reason for delay in filing the appeal before the Commissioner (Appeal....
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....uld have been allowed condonation of the delay, accordingly, the order of rejection of the appeal by the Commissioner (Appeals) on time bar is not sustainable. 4.1 As regard the issue that whether the service provided by the appellant to GSPHCL is service provided to a governmental authority, we find that the GSPHCL is a 100% owned by Government of Gujarat therefore, it clearly falls under the category of service provided to government authority. This issue has been considered in the following judgments:- * Senior Regional Manager, Tamil Nadu Civil Supplies Corporation, Thanjavur Vs. Principal Chief Commissioner of GSt & C.Ex., Chennai- 2021 (51) GSTL 360 (Mad.) "7. I am not persuaded by any of the three submissions. As rightly urged by the learned Additional Advocate General, though clause No.12(a) was withdrawn from the Mega Exemption Notification, it was reintroduced vide notification No.6/2015, dated 01.03.2015 issued by the department of Revenue and Finance Ministry, Government of India. The withdrawal notice was issued on 01.03.2015 but it came into effect on 01.04.2015. Since there was still some ambiguity as regards the treatment of the subject matter for the period fr....
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....n activities in question, the allocation was made only by the Government of Tamil Nadu. Such construction activities have been explicatively exempted by the Mega Exemption Notification issued on 20.06.2012. Of course, for a short duration, exemption was not available. But then, by a subsequent notification, the break in the exemption had also been bridged. Therefore, it should be held that the petitioner always was entitled to the benefit under Clause 12(a) of the mega exemption notification. Therefore, when the appellate order was to the benefit of the writ petitioner for the period upto October 2015, it was certainly not open to the original adjudicating authority to pass an order adverse to the petitioner for the period from October 2015. Looked at from any angle, the order impugned in the writ petition is not defensible. It stands quashed. The writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed." * Commissioner of Central Excise & S.T., Kanpur Vs. Executive Engineer, UP State Construction & Infrastructure Development Corpn. Ltd.- 2019 (24) GSTL 607 (Tri.All.) "2. After hearing both sides duly represented by Shri Rajeev Ranjan, le....
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....an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of the President." In terms of said section 112 of the Finance Act respondents applied for the refunds under section 11B of the Central Excise Act, 1944 as made applicable to the Service Tax matters vide section 83 of the Finance Act. The said refund claims so filed by the respondent was rejected by the Deputy Commissioner by observing that they failed to produce documentary evidences to show that they had not passed on the incidence of Service Tax. The show cause notices issued to the respondents were accordingly resulted in passing of order of rejection of such refund claim. 4. On appeal against the said orders, Commissioner(Appeals) scrutinized all the documents and found that the observations of the original adjudicating authority that the assessee had not filed any documents/invoices to show that the Service Tax paid by them related to the services specified in entry 12A of the mega exemption Notification are not proper inasmuch as there were all the documents to show that the services provided by them were cove....
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.... of the Finance Act, 1994, the Rules and the notifications issued thereunder? Issue No. (i) 12. Section 93 of the Finance Act, 1994, which enables the Government to grant exemption from payment of tax is extracted below: "93. Power to grant exemption from service tax (1) If the Central Government is satisfied that it is necessary in public interest so to do, it may, by notification in the Official Gazette, exempt generally or subject to such conditions as may be specified in the notification, taxable service of any specified description from the whole or any part of the service tax leviable thereon. (2) If the Central Government is satisfied that it is necessary in the public interest so to do, if may, be special order in each case, exempt any taxable service of any specified description from the payment of whole or any part of the service tax leviable thereon, under circumstances of exceptional nature to be stated in such order." 13. In exercise of the powers conferred under the aforesaid provision, various notifications have been issued providing for exemption from payment of service tax. Relevant provisions of the applicable notifications are extracted below: "Noti....
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...., namely:- In the said notification, in the paragraph 2, for clause(s), the following shall be substituted, namely:- (s) "governmental authority" means an authority or a board or any other body; (ii) set up by an Act of Parliament or a State Legislature; or (iii) established by Government, with 90% or more participation by way of equity or control, to carry out any function entrusted to a municipality under article 243W of the Constitution; xx xx xx Notification: 6/2015-S. T. dated 01-Mar-2015 Exemption from Service Tax- Mega Notification exempting 39 group of services-Amendment to Notification No. 25/2012-S.T. In exercise of the powers conferred by sub-section (1) of Section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 25/2012- Service Tax, dated the 20th June, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide G.S.R. 467(E), dated the 20th June, 2012, namely: 1. In the said n....
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....ly for use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment; or (c) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause (44) of section 65 B of the said Act; under a contract which had been entered into prior to the Ist March, 2015 and on which appropriate stamp duty, where applicable, had been paid prior to such date: provided that nothing contained in this entry shall apply on or after the Ist April, 2020. [Emphasis supplied] xx xx xx" 14. The Board has been constituted in terms of the provisions of Section 3 of the Act, as was enacted by the State Legislature. It is a body corporate which consists of a Chairman, a Chief Administrator and such other members, as the State Government may, from time to time, appoint by a notification. The Chief Administrator shall be a person from amongst the officers of the rank of Head of the Department or Joint Secretary of the State Government. It is termed to be a local authority for the purposes of Land Acquisition Act, 1894. Section 20 of the Act provides that subject to control of the State Government the Board ....
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....ce being construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of- (iii) it is meant predominantly for use other than for commerce, industry, or any other business or profession. 18. "Original works" has been defined in clause 2(y) of the notification dated 20.6.2012 to mean the meaning as assigned to in Rule 2A of the Service Tax (Determination of Value) Rules, 2000. 19. On a plain reading of the notification dated 20.6.2012, in our view, the service being provided by the petitioners would clearly fall in the exemption clause, as the Board is a governmental authority having been set up under a State Act, i.e., Haryana Housing Board Act, 1971. It is wholly controlled by the State Government. BPL houses constructed by the petitioners are meant for residential purpose and not for commerce, industry or any other business or profession. 20. Similar issue came up for consideration before a Division Bench of Patna High Court in Shapoorji Paloonji and Company Pvt. Ltd.'s (supra), where the contact was for construction of administrative block in Indian Institute of Technology set up under the Institutes of T....
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....nd the Regulations in force from time to time. The case of neither of the parties is that the liability, which may be put on the contractor/service provider, if tax is leviable, is being passed on to the Board, as the scheme of the Act provides for levy of tax 50:50 on service provider and the service recipient. Hence, the action of the Board, even if it is assumed that tax is leviable, to pass on their share of burden as per the provisions of the Act on the contractors is not envisaged in the clause. 24. Mere assessment framed by the department in the case of the Board will not detain this court from opining on the legal issue raised by the petitioners in the writ petitions, as the petitioners are aggrieved of the act of the Board in deducting the tax from their bills. 25. In view of our abovesaid discussion, the questions, as framed above, are answered as under: (i) On the contract for construction of BPL houses, as awarded by the Board to the petitioners, no service tax is leviable w.e.f. 1.7.2012; and (ii) the Board is not entitled to pass on the burden of service tax payable on its part, if the tax is leviable, upon the contractors. 26. The writ petitions stand dispo....