TaxTMI 
TaxTMI 
2024 (11) TMI 1344
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....ii)(B)(ii) of Service Tax (Determination of Value) Rules, 2006. Accordingly, service tax was demanded and confirmed 50% of 70% of the total amount charged instead of 50% of 40% as per the above Rules. With regard to clearances to units in SEZ in terms of Notification No. 12/2013-ST dated 01.07.2013, the Commissioner observed that the conditions of the said Notifications were not satisfied in as much as only the specified services duly authorised were eligible for the exemption. Accordingly, demands were confirmed denying the benefit of the above Notification. The impugned order also confirmed interest on both the above demands and also imposed penalty under Section 78 of the Finance Act, 1994 for suppression of facts and contravention of various provisions of the Act with intent to evade payment of service tax. Aggrieved by this order, the appellant is in appeal before us. 3. The learned Chartered Accountant submits that activities undertaken by the Appellant would not fall under the category of "other than original works" i.e., completion and finishing service. It is stated that the provisions of Rule 2A(ii)(B) of Service Tax (Determination of Value) Rules, 2006 would cover the....
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....he total amount charged. 3.2 Referring to the definition of 'Alteration', it is submitted that any change or modification to a base structure by carrying out works such as civil works, electrical works, sanitary fittings etc., will continue to fall with the purview of alteration and hence, form part of new constructions. It is further submitted that completion and finishing services are those activities which are primarily undertaken post completion of construction activity and since their activities are in relation to pre-construction activity or in the course of construction, they cannot fall under completion and finishing services. Reliance is placed on the decision of Supreme Court in the case of M/s. Kone Elevator India Pvt. Ltd. vs. State of Tamil Nadu and Others: 2014 (5) TMI 265 (SC) wherein it was held that agreement involving supply of both material and labour will qualify as "Works Contract" cannot be vivisected for activities performed thereunder. Also relied on the decision of the Tribunal in the case of Commissioner of Central Excise, Customs and Service Tax Cochin-CCE vs. M/a. Sherbrooke Aluminium Products: 2018 (8) TMI 1006 - CESTAT Bangalore and the decision in ....
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....The learned Chartered Accountant also submits that exemption cannot be denied merely in case involving procedural lapses, such as non-submission of prescribed forms or mention of different service in prescribed forms, wherein the services rendered are covered in the list of authorised services as listed in the Circular referred above. In this regard, reliance is placed on the following judgements to substantiate their claim that benefit of exemption otherwise available, cannot be denied merely on account of procedural lapses: • Government of Kerala Vs Mother Superior Adoration 2021 (3) TMI 93 - Supreme Court; • Union of India Versus. Suksha International & Nutan Gems & Anr. (Supreme Court) - 1989 (1) TMI 316 - Supreme Court; • Hemraj Gordhandas Versus. HH. Dave - 1964 (7) TMI 4 - Supreme Court; • Gujarat State Fertilizers Co. Versus Collector of Central Excise - 1997 (2) TMI 105 - Supreme Court; • Rama Spinners (P) Ltd. Versus. Commissioner of C. Ex., Hyderabad - 2007 (3) TMI 610 - CESTAT, Bangalore; 3.6 It is also submitted that even if exemption was denied and if service tax was payable for services provided by t....
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....Act, 1994 does not arise. Similarly, penalty equivalent to service tax demanded has been levied on the grounds of suppression of fact by the Appellant in terms of provisions of section 78 of the Finance Act, 1994, which is also not sustainable. At no point of time, the Appellant had suppressed any facts and all details were provided to the audit party during the course of audit and also, the fact that details covered in the impugned show-cause notice are based on the information made available in the form of Service Tax Returns, copy of signed financials and income tax returns provided by the appellant, hence, suppression cannot be alleged. Moreover, in the instant case, the issue pertains to interpretation of whether the services provided by the Appellant is 'Original Works' or 'Completion and finishing services' and not relating to willful mis-statement or any kind of suppression of facts, with an intent to evade any taxes and hence, the question of levying penalty under Section 78 of Finance Act, 1994 does not arise. In respect of services provided to SEZ unit, the issue relates to the services provided by the Appellant (Original Works) are different from services listed in auth....
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.... 'Architect Service' and what was supplied was 'Works Contract Service'. The Constitutional Bench of the Hon'ble Supreme Court in the case of Commissioner of Customs (Import) Mumbai Vs. M/s. Dilip Kumar and Company: 2018 (361) E.L.T. 577 (S.C.), wherein the Hon'ble Supreme Court observed that "In case of ambiguity in a charging provision, benefit must necessarily go in favour of assessee but the same is not true for an exemption notification. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue". 5. Heard both sides and perused the records. The period of dispute is from October 2014 to June 2017. The issues to be decided are: a. Whether the services undertaken by the appellant fall within the definition of "Original Works" in terms of Rule 2A(ii)A or under "Completion and Finishing Services" in terms of Rule 2A (ii)(B)(ii) of the Service Tax (Determination of Value) Rules, 2006. b. Whether the appellant is eligible for the benefit of exemption Notification No. 12/2013-ST dated 01.07.2013 for the serv....
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.... architect's fees; (iv) charges for obtaining on hire or otherwise, machinery and tools used for the execution of the works contract; (v) cost of consumables such as water, electricity, fuel used in the execution of the works contract; (vi) cost of establishment of the contractor relatable to supply of labour and services; (vii) other similar expenses relatable to supply of labour and services; and (viii) profit earned by the service provider relatable to supply of labour and services; (c) Where value added tax or sales tax has been paid or payable on the actual value of property in goods transferred in the execution of the works contract, then, such value adopted for the purposes of payment of value added tax or sales tax, shall be taken as the value of property in goods transferred in the execution of the said works contract for determination of the value of service portion in the execution of works contract under this clause. (ii) Where the value has not been determined under clause (i), the person liable to pay tax on the service portion involved in the execution of the works contract shall determine the service tax....
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....ing of light fittings (including testing and commissioning thereof). 3 HVAC works It includes activities like fixing of wooden/aluminium partitions in office, flooring at different parts of the base structure made available, fixing of aluminium partitions, POP for walls, fixing tiles, fixing support for ceiling, laying of carpet etc.., 4 Interior works It includes activities like fixing of wooden/aluminium partitions in office, flooring at different parts of the base structure made available, fixing of aluminium partitions, POP for walls, fixing tiles, fixing support for ceiling, laying of carpet etc.., 5 Data and Networking Laying of cable, installation of racks at server rooms, termination of cables at work stations (including testing and commissioning thereof) 6 Others It includes laying of conduit and cable, fixing of CCTV, laying of armoured cables, fixing of speakers and detectors (including testing and commissioning thereof) The definition of "original works" from the above Notification includes all new constructions; all types of additions and alterations to abandoned or damaged structures on land that are required to make them workabl....
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....estle India Ltd. (supra) and Maruthi Suzuki Ltd., Vs. Commissioner (supra), the question of suppression or invoking of extended period does not arise. The period of dispute is from October 2014 to June 2017 and the notice was issued on 28.12.2020. The relevant provisions of the Section 73 of the Finance Act, 1994 are reproduced below: "SECTION 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. - (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, Central Excise Officer may, within thirty months from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or ....
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....n cannot be extended. Since, in the instant case, nothing is on record to prove the same, we are not inclined to confirm the demand beyond the normal period. 6. With regard to the second issue on the services rendered to the SEZ unit, the only objection taken by the Revenue is the Form A-2 which includes the specified services duly authorized is mentioned as "works contract services" but the specified services to be received by the SEZ unit are "Architect Services". The appellant submits that though the Form A-1 provides exemption to the appellant for providing 'Architect Services' to the SEZ unit "Cerner Healthcare Solutions Pvt. Ltd.", it is not in dispute that the 'works contract services' were rendered to the above SEZ unit based on the same A-1 Form based on which A-2 Form is issued. In this regard. it is submitted that the letter dated 02.01.2018 issued by the Department of Commerce (SEZ Section) reproduced below, which lists 66 services includes 'Architect Services' as well as 'Works Contract Services'. Therefore, even if it is considered to be 'works contract services', they are still eligible for the benefit of the said Notification. F. No. D. 12/19/2013-SEZ ....
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....t to the terms and conditions prescribed in the Customs Act, 1962, the Customs Tariff Act, 1975, the Central Excise Act, 1944, the Central Tariff Act, 1985 and the Finance Act, 1994. This is especially so, since the authority of the Central Government to prescribe the terms and conditions subject to which exemptions may be granted under Section 26(1), flows only out of sub-section (2) of Section 26. The word "prescribe" is verb. Generally, no enactment defines the word "prescribe". But the SEZ Act 2005 defines the word "prescribe" under Section 2(w) to mean the rules framed by the Central Government under the SEZ Act, 2005. The space is also not left unoccupied, as the Central Government has issued a set of Rules known as "the Special Economic Zones Rules, 2006", wherein the Central Government has prescribed the terms and conditions for grant of exemptions under Rule 22. Therefore, there is no question of comparing the terms and conditions prescribed in Rule 22 with the terms and conditions prescribed in the notifications issued under any one of five enactments listed in Section 26(1) to find out whether there was any inconsistency. 31. Support can be drawn for the above i....
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....Sundari R. Pispuati, Learned Senior Standing Counsel relied upon two decisions of the Supreme Court and one decision of the Madras High Court. In Ravula Subba Rao v. Commissioner of Income Tax, Madras - AIR 1956 SC 604 relied upon by the Learned Senior Standing Counsel, the question that arose before the Supreme Court was whether the requirement under the Income Tax Rules (as they existed then) for all partners to sign an application for registration personally, would exclude the applicability of the Powers of Attorney Act, 1882, which empowers every agent to do what the principal is capable of doing. The Supreme Court held in that context that the Income Tax Act is a complete Code in itself and that therefore, the question of importing the Powers of Attorney Act, would not arise". 6.2 The above decision was upheld by the Hon'ble Supreme Court in the case of Union of India Versus GMR Aerospace Engineering Ltd. in Special Leave Petition (Civil) Diary No. 22140 of 2019, decided on 26-7-2019 which reads as: "2. In the facts and circumstances of the present case, we see no reason to interfere with the impugned judgment and order of the High Court. 3. The Special Le....