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2022 (8) TMI 645
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....ion of residential complex pre-dominantly 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....
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.... appellant from their right of appeal, we are, therefore of the considered view that the appellant should 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 As rightly urged by the learned Additional Advocate General, though clause No.12(a) was withdrawn from the Mega Exemption Notification, it was reintroduced vide notification No.6/2015, dated 01.03.2015 issued by the department of Revenue and Finance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 e....
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....ppellate order. On this ground also, the impugned order has to go. 10. The petitioner is a public sector undertaking. It is funded entirely by the Government. Even for the construction 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 Cent....
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....here applicable, had been paid before that date. (2) Refund shall be made of all such service tax which has been collected but which would not have been so collected had sub-section (1) been in force at all the material times. (3) Notwithstanding anything contained in this Chapter, 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 orig....
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.... consideration by this court in the present petition: (i) Whether service tax is chargeable on construction of BPL houses constructed by the petitioners for the Board ? (ii) Whether in terms of condition No. 3 in the tender conditions, the petitioners would be liable to discharge the liability of service tax, if payable, by the Board as per the provisions 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 spe....
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....ercise 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, Subsection (i) vide GSR 467 (E), dated the 20th June, 2012, 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....
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....h June, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 467 (E) dated the 20th June, 2012, namely: xx xx xx (iv) after entry 12, with effect from the Ist March, 2016, the following entry shall be inserted, namely- "12A. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of - (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) a structure meant predominantly 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: provide....
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.... would be liability of the Board in law. 17. The service tax has been levied on various services with amendments made in Finance Act, 1994. The services on which the tax was levied were added from time to time. Section 93 of the Finance Act, 1994 enables the Central Government to exempt any service from payment of tax by issuing a notification. Notification No. 25/2012-S.T. Dated 20.6.2012 was issued stating therein that the Government being satisfied exempts the taxable services as enumerated in the notification from the whole of the service tax leviable thereon. If clause 12 of the notification dated 20.6.2012 is analysed, exemption from taxation to the services is provided to : (i) Government, a local authority or a governmental authority; (ii) the kind of service 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 Rul....
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....of the aforesaid clause. As per the provisions of Finance Act, 1994, as amended upto date read with notification No. 30/2012-S.T. Dated 20.6.2012 on the works contracts the liability is 50% on the contractor, whereas 50% is on the contractee, i.e., service provider and the service recipient. The stand of the petitioners was that for any alleged levy on the petitioners, namely, the contractors/service provider, the department never issued any notice seeking to levy the tax. Notice was issued to the Board. From the running bills of the petitioners, the Board had deducted the amount of tax, which is to be paid by the Board, in case the tax is leviable, which was totally uncalled for. A perusal of the aforesaid clause shows that the contractor is liable to pay various taxes, as mentioned in the clause, directly to the department in accordance with the Rules and 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 o....