TaxTMI 
TaxTMI 
TaxTMI 
2024 (1) TMI 891
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....lue of the contracts towards material relying on CBIC's circular dated 25.5.2010. 2. Service Tax Appeal 50961/2018 is filed by the Revenue asserting that the Principal Commissioner committed an error in allowing 90% abatement towards the cost of the materials in the Works contracts towards material because as per the explanation (3) to Rule 9 of the Uttar Pradesh VAT Rules, 2008, the assessee is required to pay VAT only on 80% of the composite value of works contracts towards materials and 20% abatement is allowed towards the value of the services. 3. Service Tax Appeals numbered 50967/2018 51320/2018 and 51321/2018 are filed by the assessee assailing the confirmation of the demands as, according to it, no service tax was payable at all since the services were rendered to the Public Works Department [PWD] of the Government and to the New Okhla Industrial Development Authority [NOIDA] and hence were fully exempted during the relevant period as per entry 12 of Notification No. 25/2012-ST dated 20.6.2012. According to the assessee, all three Show Cause Notices were also not sustainable for the reason that the demands were made under Sections 65(105)(zzd) (Erection, Commissioni....
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....o be set aside as the authority of law relied upon did not exist during the relevant period and the assessee was not put to notice under the law relevant to the period. 7. According to the learned authorised representative for the Revenue, all services were chargeable to service tax during the relevant period and mere mentioning of an incorrect legal provision in the SCNs cannot render the demands does not vitiate them. Relying on Pradyumn Steel Ltd. [1996(82) ELT 441(SC)] and J K Steel Ltd., he submits that 'mere mention of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power". However, learned authorised representative assails the Commissioner relying on exemption notification no. 12/2003-ST dated 30.6.2003 which has been rescinded by notification no. 34/2012-ST dated 20.6.2012. 8. We have considered the submissions on this issue. It is undisputed that the charging sections under which the appellant was put to notice did not exist during the relevant period although all services were chargeable to service tax (unless they are in negative list) during the relev....
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....tained under some other provision and therefore, sustained as per the law laid down by the Supreme Court in Pradyumna Steel. We do not know because, the assessee was not put to notice on those provisions nor was the assessee able to defend itself on them. At this stage in this appeal, we cannot either examine or confirm a demand under a provision which was neither quoted in the SCN nor examined in the impugned order and uphold the demands confirmed by the Commissioner under entirely provisions. 10. It would have been a different case if the Commissioner had, noting that the SCNs were erroneous, given the appellant sufficient opportunity to defend under the relevant provisions, examined their submissions and confirmed the demand under the provisions relevant to the period. Therefore, this is not a case of mere wrong mention of a provision in the SCN but a confirmation of demand on charging sections which did not exist during the relevant period at all. It is also a case of ascertaining the demand considering exemption notification which also did not exist during the relevant period. Not only were the wrong provisions invoked in the SCN, but the demands were confirmed under them in ....
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....or a State Legislature; or (ii) 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; 13. It is undisputed that the services were rendered to the PWD and to NOIDA. PWD stands for Public Works Department which is a department of the State Government. Therefore, it is Government itself and not a Governmental authority. The notification exempts not only services rendered to governmental authorities but also services rendered to the Governments and Local authorities. PWD, being the Government, the question of it having to fall under the definition of 'Governmental authority' does not arise. As far as NOIDA is concerned, it stands for New Okhla Industrial Development Authority which governs a part of the National Capital Territory of Delhi and is part of the State of Uttar Pradesh. It is created, as per the learned consultant, under the UP Industrial Area Development Act, 1976 (Section 3) like other similar authorities in the State. Section 6 of the Act explains the functions of these authorities as follows: Section 6: Functions of the authority (1) The....