TaxTMI 
TaxTMI 
2025 (9) TMI 192
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.... case are that the Appellant M/s U.P. State Construction & Infrastructure Development Corporation Ltd., Kannauj are engaged in construction of various Government buildings under various Government orders issued by the State Government or the Central Government. Vide Notification No.6/2015-ST dated 01.03.2015, service tax became leviable on construction of Government building with effect from 01.04.2015, as a result, the Appellant got itself registered with the Central Excise and Service Tax Division, Farrukhabad and deposited the applicable service tax through various challans, service tax returns were also filed. Subsequently, vide Notification No.09/2016-ST dated 01.03.2016, service tax on the construction services provided to Government ....
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....on construction of civil structure predominantly meant for use other than commerce & industry. 3. 01.03.2016 Exemption restored vide Notification No.9/2016-ST dated 01.03.2016 for works undertaken against agreement/contract entered into prior to 01.03.2015. 4. 14.05.2016 A new Section 102 was inserted in Finance Act, 1994 for the said exemption and allowing refund of the tax paid during the period 01.03.2015 to 29.02.2016 (both days inclusive). 5. 19.09.2016 Appellants filed refund application of service tax of Rs.76,21,000/- paid during 01.04.2015 to 29.02.2016 in terms of new Section 102. 6. 16.02.2017 Show cause notice was issued to appellants proposing rejection of refund claim vide C. No.25/ST/Refund....
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....unal. 14. 30.01.201915.02.2019 Order-in-Original No.01/DC/ADJ/ST/2019 dated 30.01.2019/15.02.2019 was passed confirming the demand of service tax amounting to Rs.47,85,015.00 in pursuance of SCN dated 16.04.2018. 15. 03.10.2019 The Commissioner (Appeals) Allahabad vide Order-in-Appeal No.211/ST/ALLD/2019 dated 03.10.2019 set aside the O-I-O dated 30.01.2019/15.02.2019 and remanded the matter to the original Adjudicating Authority. 16. 12.08.2020 Order-in-Original No.08/AC/Adj/ST/2020 dated 12.08.2020confirming a demand of service tax amounting to Rs.42,83,529.00 was issued. 17. 10.08.2021 Appeal against the O-I-O dated 12.08.2020 was filed before Commissioner (Appeals) Allahabad who vide Order-in-Appeal N....
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....onfirmed. I find that when the service tax is exempt during the period under dispute, then the issue of short payment cannot be raised. Section 102 inserted with effect from 14.05.2016 is extracted below for ready reference:- "SECTION 102. Special provision for exemption in certain cases relating to construction of Government buildings. - (1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning, installation....
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....uty Commissioner by observing that they failed to produce documentary evidences to show that they had not passed on the incidence of Service Tax. The SCNs issued to the Appellant resulted in passing of order of rejection of such refund claim. 8. On appeal, against the said orders, Commissioner (Appeals) scrutinized all the documents and found that the observations of the Original Adjudicating authority that the assessee had not filed any documents/invoices to show that the Service Tax paid by them related to the services specified in entry 12A of the mega exemption Notification are not proper inasmuch as there were all the documents to show that the services provided by them were covered by the said entry. As regards unjust enrichment an....
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....tax twice in ST-3 returns. Further it is on record that though the challan of Rs.37,80,000/- dated 13.10.2015 was mentioned in both the half yearly returns, even the taxable value was also repeated mistakenly in the subsequent ST-3 for second half of the year. It is the submission of the Appellant that there was bona fide clerical error but there was no short payment of tax or double claim of any challans. I find that the impugned SCN was issued proposing to recover alleged short payment of service tax which had already been refunded. Further, once the application of refund is allowed under Section 11(B) of the Central Excise Act, SCN for recovery of refund cannot be issued unless the refund has been held to be erroneous. I find support fro....