TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 192
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....and of Service Tax on reverse charge basis on the royalty amount paid to the State Government on natural resource (limestone) extraction. 13,45,733/- Demand of Service Tax on reverse charge basis on works contract service received by the Appellant. 1,46,250/- Short Payment of Swachh Bharat Cess (SBC) and Krishi Kalyan Cess (KKC) 23,520/- + 30,283/- = 53,803/- Input Service Credit availed on the basis of ineligible documents. 9,00,380/- Total 1,49,07,938/- 2. The impugned Notice was adjudicated vide an order dated 08 November 2021 passed by the Ld. Additional Commissioner of CGST and CX, Guwahati, wherein he has confirmed the demands raised in the Notice along with interest and penalty. On appeal, the Ld. Commissioner (Appeals) upheld the demands confirmed in the Order-in-Original vide impugned Order-in-Appeal dated 07 June 2023. Aggrieved against the impugned order, the appellant has filed this appeal. 3. Regarding the demand of service tax of 1,24,61,772/- in respect of construction of Railway Siding, the appellant submits that the services are exempt in terms of Notification No. 25/2012- ST dated 20 June 2012. The appellant further submits that the issue is no more res....
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....as applicable prior to the said date would be applicable to determine the leviability of service tax on the royalty payments. It has been settled by a number of judgements of the Tribunals that when the assignment of right to use natural resources was made before 01 April 2016, service tax liability cannot be fastened upon the Appellant even if the consideration for the same is paid after the introduction of the levy with effect from the said date. In support of this contention, the appellant relied on the following decisions: a. Ms. The Madhya Pradesh State Mining Corporation Limited Vs. Pr. Commissioner, CGST & Central Excise2023 (4) TMI 1075 - (Tri. - New Delhi) b. Principal Commissioner of CGST and Central Excise Vs. SK Traders(2023) 9 Centax 407(Tri. - New Delhi) 3.4. Regarding the demand of service tax of 1,46,250/- under works contract service, the appellant submits that they have entered into a work contract agreement with the main contractor M/s. R.S. Engineering for the value of Rs. 22,42,500 which was inclusive of Service Tax amounting to Rs. 2,92,500/-. Therefore, the Appellant duly paid the service tax at the rate of 100 percent to the works contractor. The said....
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....both sides and perused the appeal documents. 6. We observe that the impugned order has confirmed the demands under five different categories. We have examined the demands on the basis of the submissions made by the appellant, department and other documentary evidences available on record. 6.1. Regarding the demand of service tax of 1,24,61,772/- in respect of construction of Railway Siding, the appellant submits that the services are exempt in terms of Notification No. 25/2012- ST dated 20 June 2012. Relevant extracts of the said notification have been reproduced hereunder: "14. Services by way of construction, erection, commissioning, or installation of original works pertaining to,- (a) an airport, port or railways, including monorail or metro;" 6.2. We observe that the impugned order has relied upon the definition of "railways" as given in the Railway Act, 1989 to hold that the benefit of the aforesaid exemption notification shall not be available to the Appellant because the sidings constructed by the Railways for the Appellant was for private use and the same was not used for public carriage of passenger or goods. 6.3. We observe that the term "railways" has not been....
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....xability and it is not open to the adjudicating authority to arrogate that privilege in an executive capacity. The intent of exclusion prior to 1st July 2012, and exemption for the period, thereafter, is abundantly clear." 6.6. We also find that the Tribunal, Kolkata in the case of Shri Mahendra Kumar Anchalia Vs. Commissioner of CGST & CX, Kolkata [2023 (9) TMI 1377] held the same view. Relevant extract of the said decision is reproduced below: "11. The department has interpreted the word "Railways" in the aforesaid notification and restricted it's meaning to cover only "Railways meant for public carriage of passengers or goods". We observe that there is no such restriction available in the Notification. A plain reading of the Notification reveals that the exemption is available to all Railways whether it is run by Government or the tracks are laid at private Firms. The exemption notification has a wider impact and it is sufficient to cover any infrastructure as Railway. As there is no mention of the fact that the structure has to be used for public carriage, we hold that the exemption is available to all Railway infrastructure." 6.7. In view of the above, we hold that the....
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...., by invoking extended period of limitation. We observe that the fact of nonpayment of the cesses by the appellant was well within the knowledge of the department in view of the Audit conducted. Accordingly, we hold that the intention to evade payment of service tax does not exist in this case. Thus, we hold that the demand confirmed on this count is not sustainable. 10. Regarding denial of input tax credit amounting to Rs. 9,00,380/- on the ground of ineligible documents, we observe that initially the appellant has taken the Cenvat Credit on the basis of the railway receipts given by the railways. In terms of Notification No. 26/2014 (CE) dated 27 August 2014, the Appellant was required to obtain STTG certificate to avail the Cenvat Credit. We observe that the appellant has obtained the STTG certificates as required under the said notification and submitted the same before the Ld. Adjudicating Authority during the course of personal hearing. However, the Ld. Adjudicating Authority has rejected the credit by holding that no co-relation is possible between the submitted documents. We have perused the STTG certificate submitted by the appellant. We observe that the STTG Certificates....