TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 1219
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....Both the Notices were adjudicated by a Common Order dated 25-01-2016, wherein the demands raised in the Notices were confirmed along with interest and penalty. 1.3. The present appeal has been filed by the appellant against the impugned Order-in-Original No. 30-31/Commr/ST-I/Kol/2015-16 dated 25.01.2016 passed by the Principal Commissioner of Service Tax-I Kendriya Utpad Shulk Bhawan (3rd Floor), 180, Santipally, Rajdanga Main Road, Kolkata. 2. The demands raised in the Show Cause Notice dated 16-10-2012/ confirmed in the impugned order are summarized as under: (i) Short payment of Service Tax for the period 2009-10 and 2010-11 amounting to Rs.15,27,391/-. Out of which Rs.11,76,266/- has been confirmed in the impugned order. (ii) Non-payment of Service Tax on 'reimbursement of electricity charges' amounting to Rs.50,02,218/- for the period 2007-08 to 2011-12. The entire demand has been confirmed in the impugned order. (iii) Demand of Service Tax amounting to Rs.4,29,524/- has been raised on the differential value of Profit & Loss Account and ST-3 return for the period 2007-08 to 2011-12. The entire demand has been confirmed in the impugned order. (iv) Demand of Se....
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....has been held by this Tribunal in the appellant's own group company's appeals, in Forum Mall Management Services Pvt Ltd VS. Commissioner of Service Tax, Final Order No. 77044-77045/2024 dated 23-09-2024. 3.2. Regarding the demand of Service Tax amounting to Rs.4,29,524/- made on the differential figures of Profit & Loss Accounts and ST-3 returns, the appellant submits that during the impugned period Service Tax is payable on receipt basis, whereas, the figures of Profit & Loss Account is on accrual basis. Therefore, the figures of ST-3 return is not comparable with the figures of Profit & Loss Account. This issue is settled in favour of the appellant by the decisions of this Bench in M/s. Forum Projects Private Limited by Final Order No. 75153/2025, dated 27-01-2025 and in the case of Balajee Machinery v. Commissioner of C.G.S.T. & Excise, Patna-11 [2022 (66) G.S.T.L. 440 (Tri. - Kol.)]. 3.3. The appellant submits that the demand of Service Tax of Rs.5,48,328/- has been confirmed on the 'interest' received against loan made to the group companies. The demand has been confirmed on the erroneous premise that the 'interest' has been received against financial le....
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....uppression of facts. This view has been by the decision of the Hon'ble Supreme Court in Nizam Sugar Factory Vs. Collector of Central Excise, A.P., 2006(197) E.L.T.465 (SC). Thus, the appellant submits that the demand confirmed by invoking extended period of limitation in the second Show Cause Notice 21.04.2015, for the Period 2012-13 to 2014-15 (up to September 2014), is not sustainable. 5. The Ld. A.R. reiterated the findings in the impugned order. 6. Heard both sides and perused the appeal documents. 7. Regarding the demand of short payment of Service Tax amounting to Rs. 11,76,266/- for the period 2009-10 and 2010-11, we observe that the appellant has already been paid by the amount by challan No 00433, dated 14-08-2012, which has been recorded by the Ld. adjudicating authority at para 4.3 of the impugned order. Thus, we find that the appellant has not disputed the demand of service tax along with interest. They are only disputing the penalty equal to the tax confirmed on this issue. In this regard, we find that the entire demand confirmed is barred by limitation. The Show Cause Notice is dated 16-10-2012 and the impugned period is 2009-10 and 2010-11. We find that the ap....
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....is, we find the electricity is goods chargeable to duty under Central Excise Tariff as well as under the Maharashtra Value Added Tax Act, 2002. Therefore, the supply of electricity to tenant amounts to sale of goods and not supply of service. Further the Notification No.12/03 ST dated 20/6/2003exempt from service tax, any value of goods supplied by service provider to service recipient. Further we find that the Commissioner of Central Excise Pune. III vide Order-in-Original dated 28.11.2011 relied upon by the appellants dropped the proceedings which were initiated on the same ground in the case of M/s. Panchshil Tech Park Ltd. The Commissioner of Central Excise in the adjudication order held that electricity is goods and chargeable to Nil excise duty. The decision of the adjudicating authority is accepted by the Revenue as per the communication dated 26.9.2012 by the Commissioner of Central Excise, Pune. III. The present appellants are also under the jurisdiction of Pune III Commissionerate." 11. Therefore, we hold that the electricity charges are not liable to service tax." 7.3. We observe that the same view has been held by this Tribunal in the appellant's own group compan....
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....poration Tax cannot be subjected to Service Tax and hence this demand confirmed on this amount is not sustainable and the same is set aside. 11. Regarding the demand of Rs.97,393/- (Rs.81,685/- Rs.15,708) towards recovery of Cenvat Credit, we find that there is no dispute regarding receipt of the 'input service' and use of the same for provision of the output service. In this regard, we find that the credit has been denied on the ground that payment is made to the service provider within the financial year. In this regard, we find that there is no mandate under the CENVAT Credit Rules, 2004 to make payment within the financial year. Accordingly, we hold that the demand of recovery of Cenvat credit on this ground is not sustainable and hence the same is set aside. 12. Regarding the demand of Service Tax of Rs.30,41,946/- on the 'facility charges', we observe that such amount has been recovered towards sharing of expenses incurred by the appellant on behalf of the group companies at the agreed ratio. We find that the appellant have collected such amount and recorded the same in its statutory records including in the Profit & Loss Account under the heading Establishm....
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....ted in the ratio of 60 : 40, meaning thereby that GSFC receives 60% of the HCN whereas GACL receives 40% of the supply in accordance with their respective requirement. To enable GACL to receive this HCN through common pipeline, arrangement/agreement was entered into between these two parties. For this purpose, handling facilities were installed in the premises of GSFC. However, fact remains, for which there is no dispute, that for installation of these facilities both the parties had contributed towards the investment. Since the said handling facilities are in the premises of GSFC, incineration also takes place at the said premises. Handling facilities expenditure thereof is shared equally by both the parties. That is clearly provided in the agreement/arrangement that was agreed to between the parties and is reflected in the Minutes dated 6-7-1980. Once these facts are accepted, we find that handling portion and maintenance including incineration facilities is in the nature of joint venture between two of them and the parties have simply agreed to share the expenditure. The payment which is made by GACL to GSFC is the share of GACL which is payable to GSFC. By no stretch of imagina....