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2025 (7) TMI 349
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....ue date till 17.04.2006 and @ Rs. 200/ per day or @2% of such service tax per month from 18.04.2006 to 09.05.2008 under section 76 of the said Act, on the basis of findings recorded in the order. 2. Earlier the Ld. Commissioner vide his Order - In - Original No. 24/ Commr./BOL/2011 dated 25.03.11. confirmed the demand of service Tax, including ceases totally amounting to Rs.75,97,824/- along with interest and penalty. On appeal, CESTAT, Kolkata vide its ORDER NO. FO/A/71020/2013 dated 20.08.2013 remanded the case to the original authority for re-determination of service tax liabilities after examination of all evidences. In the Denovo adjudication, the Ld. Commissioner has passed the impugned order dated 26.02.2016. Aggrieved against the said order, the appellant has filed this appeal. 3. The Appellant submits that they took registration on 19.04.2007 for 'Construction Service in respect of Commercial or Industrial Buildings and Civil Structures'. The instant demand notice has been issued on 20.04.2010 for the period from 02.11.2004 to 2008-09. As proprietorship concern, he was required to discharge service tax liability, if any, for the period ending 31.03.2005 within 31.03.....
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....ion of recovery proceedings of the service tax not paid or short paid. Until and unless the tax liability for particular service is indicated in the impugned demand notice, the opportunity to refute the same is not available to him and so the instant proceedings is not a valid one. In support of this view, he relied on the decision of the Hon'ble Apex Court in the case of Metal Forgings v. U.O.I. reported in 2002(146) E.L.T. 241(S.C.). The above judgment has been relied upon by the CESTAT, Principal Bench, New Delhi in the case of Bharat Seats Ltd. vs. Commissioner of C. E., New Delhi reported in 2009 (242) E.L.T. 308 (Tri. - Del.) holding, inter alia, that show cause notice is foundations of any proceeding and categorical demonstration of allegations as to ingredients of law, is essential. The said judgment of the Hon'ble Apex Court has been relied upon by the CESTAT, Principal Bench, New Delhi in the case of Jetlite(India) Ltd. vs. Commissioner of C. E., New Delhi reported in 2011 (21) S.T.R. 119 (Tri. - Del.) holding, inter alia, merely based on registration certificate, one cannot conclude about the liability of service tax and merely because the firm is enrolled under Finance ....
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.... also pointed out the following discrepancies while computing the demand of service tax in the impugned Notice/Order: (a) the service tax liability to be calculated from 01.04.2005 to 31.05.2007 after allowing the benefit of abatement; (b) from 01.06.2007, the service tax to be calculated @ 2% upto 29.02.2008 even payment received thereafter; (c) from 01.03.2008, either calculate the service tax @ 4% or after allowing abatement under notification No. 1/2006; (d) where the service has been provided to main contractor, no service tax be demanded; and (e) particularly Work Order given by the Chief Engineer (Trans Proj.) of WBSEB bearing Memo No. TR PROJ/Belmuri/T-113/1077 dated 10.11.2005, placed in the Paper Book, Page 325 onwards, may be seen that the said job was provided related to transmission of electricity. Exemption notification No. 11/2010-S.T., dated 27-2-2010 was issued to allow full exemption of service tax on the taxable service provided to any person, by any other person for transmission of electricity. Further, full exemption to all taxable services relating to transmission of electricity till 26-2-2010 and distribution....
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..... 112 (Tri. - Mumbai) has also taken the same view. 3.9. The service provided to Railways, WBSEB (for power transmission), to Govt. Agencies like ADDA and DMC (for road and sewerage) are not taxable and so he requested to quantify the said services and allow him an opportunity to submit proper defence. So far as service provided to Govt. Agencies like ADDA and DMC (for road and sewerage), he submitted that those services are not taxable and he relied on the decision of the CESTAT, WZB, Mumbai in the case of LALIT CONSTRUCTIONS Versus COMMISSIONER OF CENTRAL EXCISE, RAIGAD reported in 2012 (27) S.T.R. 138 (Tri. - Mumbai), wherein it has been held that Civil Contractor engaged in activity of providing, lowering and laying of sewerage and water supply pipeline including construction of chambers, operation, maintenance and repair work to water supply distribution network, underground drainage work etc. to various Government bodies, such activities undertaken by the assessee are not covered under the category of Erection, Commissioning or Installation Service under sections 65(39a) and 65(105)(zzd) of the said Act; 3.10. He has provided service as sub - contractor to main contract....
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....side the order passed without dealing the contentions and the order being not speaking and unreasoned . 3.12. The Ld. Commissioner has failed to consider the contentions made in the 'Write up' submitted at the time of hearing - except a portion of demand of service tax of Rs. 8,04,461/ including cesses on service related to Railways provided by the Appellant. He has not even allowed the same benefit when such service was provided to main contractor related to Railway - so the Appellant has no other alternative but to repeat the same contentions supported by case laws for consideration of this Tribunal again. 3.13. The Ld. Commissioner has denied the benefit of exemption in case of service provided to WBSEB, which has been specifically allowed under notification No. 45/2010-S.T., dated 20- 7-2010, to exempt all taxable services relating to transmission and distribution of electricity provided by a person. The Ld. Commissioner in para 4.14 of the order has distinguished the above notification on the analogy that the work has no direct relation with the transmission and distribution of electricity. The WBSEB prior to bifurcation as WBSEB and WBSEDL, was engaged in generation, tr....
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....view of the above submissions, the appellant prays for setting aside the demands of service tax confirmed in the impugned order and allow their appeal. 4. The Ld. A.R. reiterated the findings in the impugned order. 5. Heard both sides and perused the appeal documents. 6. We find that the same issue has come before this Tribunal earlier and this Tribunal has remanded the matter to the Ld. Adjudicating authority to pass a speaking order after giving an opportunity to the appellant to submit all the documents available with him. On the basis of direction of this Tribunal, the Ld. Commissioner has passed this Order - In - Original No. 24/ Commr./BOL/2011 dated 25.03.11. confirming the demand of service Tax demanding service tax including ceases totally amounting to Rs.75,97,824/- along with interest and penalty and dropped the demand of Rs. 8,04,461/ including cesses. 6.1. It is the submission of the appellant that while confirming the demand of service tax again vide the impugned order, the Ld. Adjudicating authority has failed to take note of the notification No. 15/2004-S.T., dated 10-9- 2004, which provided exemption of thirty-three per cent. of the gross amount charged....
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.... has no direct relation with the transmission and distribution of electricity. In this regard, we observe that the WBSEB prior to bifurcation as WBSEB and WBSEDL, was engaged in generation, transmission and distribution of electricity and so there cannot be any doubt that all the work received by it were related to generation, transmission and distribution of electricity and hence such narrow interpretation cannot be made to deny benefit of emption. Accordingly, we hold that the appellant are eligible for the said exemption to the services rendered in connection with transmission of electricity. 6.5. We observe that the demand of service tax has been raised in this case on the basis of Balance Sheets and records submitted by the Appellant. We observe that the demand notice is the foundation of recovery proceedings of the service tax not paid or short paid. Until and unless the tax liability for particular service is indicated in the impugned demand notice, the opportunity to refute the same is not available to the appellant. In the instant case, we find that the show cause notice has not has not specifically demanded service tax under any particular category. The following....
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....t received is not correct. More so because many times we have found that Balance Sheet is prepared on accrual basis whereas Service Tax is levied on receipt basis. In any case for demand of Service Tax, first of all the nature of services rendered has to be considered, thereafter it has to be examined whether the service is covered by definition of services in the Finance Act, 1994 and classified under a particular service category, thereafter it has to be seen what is rate of tax and consideration received and the tax has to be calculated. This is the process to be followed for assessment of tax and in the absence of any assessment by the assessee when the Commissioner proceeds for adjudication this process has to be followed. In the absence of such a process it would not be possible to apply any law and decide the matter. Therefore we find that the preliminary objection raised by the learned counsel is valid and therefore the matter is required to be remanded to the original authority at this stage itself. Accordingly the impugned order is set aside and the matter is remanded to the original adjudicating authority to proceed in accordance with law after giving reasonable opportun....