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2023 (7) TMI 436
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....ssued under C. No. DL-III/ST/AE/Gr-V/TPD/01/2015 on 03.12.2015 (hereinafter referred to as "SCN-I" 2010-11 to 2013-14 Service Tax of Rs. 3,23,26,278/- Cenvat credit of Rs. 1,03,57,959/- with interest and penalty All as proposed except that Cenvat credit demand was confirmed to the extent of Rs. 99,96,980/- with interest and penalty 2. SCN No. 28/ST/R-60/Div.-XII/2015-16 issued under C. No. DL-III/ST/Div.-XII/R-60/SCN/SC/ & SS/88/ 2015 on 18.04.2016 (hereinafter referred to as "SCN-II" 2014-15 Service Tax of Rs. 93,43,404/- Cenvat credit of Rs. 22,79,422/- Same as proposed 2. The facts, in brief, are as follows : the appellants are engaged in providing the taxable services of "Consulting Engineer Service" (CES) to their major clients for providing consultation for road, bridges, tunnels etc. to their clients namely M/s Euro Studio, Spain, M/s Euro Studio, SL, Jammu & Kashmir and M/s NHAI, M/s Getinsa Ingeneria. Based on an intelligence gathered by the Department, the registered premises of appellant were searched, however, the premises were found to be the residential locked premises and their corporate office was found existing at Sector 49, Sohna Road Gu....
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....the State or otherwise." 7. In addition, it is submitted that service tax was otherwise was not payable on construction of roads made anywhere in India post 01.07.2012. Though the services, in question, were covered under "other than negative service", but still those were exempted under the Mega Exemption Notification No. 25/2012-ST dated 20 June 2012 exempting any service provided in relation to construction of road. It is mentioned that all the allegations are apparently vague. The description of service as provided in the contract executed with the clients clearly indicate that the services were provided in relation to a road to be constructed in the State of Jammu & Kashmir. The services were held to be intangible services with no relation to immovable property, hence, are apparently wrong. The show cause notice is also alleged to be barred by time for want of any evident of record for prove alleged suppression of facts by the appellant with an intend to evade the duty. Learned counsel has relied upon on the following case laws :- (i) Bharat Petroleum Corporation Ltd. versus Commissioner of Service Tax, Noida [2018 (3) TMI 1428 - CESTAT ALLAHABAD], [EXHIBIT - G] ....
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.... issuing the show cause notice. First Question for adjudication : 10. To adjudicate the same, we first need to look into the definition and nature of Consulting Engineer Services. The services are defined under Section 65 (31) and is taxable under 65 (105) (g) of Finance Act, 1994, which read as follows :- "65 (31) "consulting engineer" means any professionally qualified engineer or [any body corporate or any other firm] who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner [to any person] in one or more disciplines of engineering" ; "65 (105) (g) to any person, by a consulting engineer in relation to advice, consultancy or technical assistance in any manner in one or more disciplines of engineering including the discipline of computer hardware engineering". 11. To understand this definition, we need to understand the scope of Consulting Engineers. Consulting Engineers either individually or in association used their expertise in the areas, such as, planning, design construction and analysis of both public and private infrastructure. They used their knowledge of Science and Mathematics to develop real wo....
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....ued by MoRTH (the "quality Control Manuals") or any modification/substitution thereof shall be deemed to be tests conforming to Good Industry Practice for quality assurance. The Independent Engineer shall issue necessary directions to the Concessionaire for ensuring that the tests are conducted in a fair and efficient manner, and shall monitor and review the results thereof. 5.10 If at any time during the Construction Period, the Independent Engineer determines that the Concessionaire has not made adequate arrangements for the safety of workers and Users in the zone of construction or that any work is being carried out in a manner that threatens the safety of the workers and the Users, it shall make a recommendation to the Authority forthwith, identifying the whole or part of the Construction Works that should be suspended for ensuring safety in respect thereof". 13. The perusal of above discussed responsibilities of Consultant Engineer and the defined role in the impugned agreement makes it clear that the scope of service of appellant in the given facts and circumstances was that of a Consulting Engineer for construction of a road in the territory of State of Jammu & K....
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....nce Act, 2012 is relevant according to which there shall be levy of tax @ 12% on the value of services other than those services specified in the negative list provided or agreed to be provided in taxable territory by one person to another and collected in such manner as may be prescribed. Section 66C of the Act now is to be looked into which reads as follows : 66C. Determination of place of provision of service - (1) The Central Government may, having regard to the nature and description of various services, by rules made in this regard, determine the place where such services are provided or deemed to have been provided or agreed to be provided deemed to have been agreed to be provided. (2) Any rule made under sub-section (1) shall not be invalid merely on the ground that either the service provider or the service receiver or both are located at a place being outside the taxable territory". Along with these provisions the rules under Place of Provision of Services Rules, 2012 acquire relevance. Rule 8 thereof has been considered by the authorities below for rejecting the claim of the appellant. Perusal of these rules which came into effect from....
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....rminals for road transportation for use by general public. In the present case it is an admitted fact that the services provided by the appellants are towards the construction of a road meant for use by the general public. 17. In light of above discussion and also from the point of view as already been held that for providing the consultation services for construction of road appellant had to be on site on regular basis, we are of the opinion that the services rendered by the appellants are wrongly held as taxable. This Tribunal in the case of Quest Engineers & Consultant Pvt. Ltd. versus Commissioner, CGST & C. EX., Allahabad [2022 (58) G.S.T.L. 345 (Tri. - All.)] has held that the Consulting Engineering Services provided with respect to road construction are also entitled to exemption under Sl. No. 13A of Notification No. 25/2012 for the reason that when road construction is exempted every activity relating thereto including Consulting Engineering Service stands exempted. It was held in this case that the appellant is entitled to exemption under the Notification No. 25/2012-S.T. under Sl. No. 13(a) of the said notification for providing CES for road construction. We also draw ....
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.... (iv) a first stage dealer or a second stage dealer, as the case may be, in terms of the provisions of Central Excise Rules, 2002; or (b) a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of, the said manufacturer or importer, in case additional amount of excise duties or additional duty leviable under section 3 of the Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any non-levy or short-levy by reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any provisions of the Excise Act, or of the Customs Act, 1962 (52 of 1962) or the rules made thereunder with intent to evade payment of duty. Explanation. - For removal of doubts, it is clarified that supplementary invoice shall also include challan or any other similar docu....
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....emises of first or second stage dealers or [provider of output service], and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is satisfied that the goods or services covered by the said document have been received and accounted for in the books of the account of the receiver, he may allow the CENVAT credit.] to (11). 19. It is clear from the above provision that any of the documents, as mentioned in Clause (a) to (g) of the said rule is sufficient for availment of Cenvat credit as per Clause 9 (f) an invoice/bill or challan issued by the provider of input service is a relevant document. 20. We observe that there is no denial of the Department about the requisite price available on the invoices based whereupon the Cenvat credit has been availed by the appellant. Though the address mentioned thereupon is different from the registered address, but as apparent from show cause notice itself the appellant were found existing on the address mentioned in the invoice with explanation of the circumstances about shifting to the different address. Hence the objection about address is nothing but simply a procedural la....