TaxTMI 
TaxTMI 
2025 (12) TMI 521
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....f CGST Act, 2017 and order for recovery of the same. I drop the demand the Service Tax including Cess amounting to Rs. 1,10,59,914/- (Rupees One Crore Ten Lacs Fifty Nine Thousands Nine Hundred and Fourteen Only) in view of the discussion made here in above. (ii) I confirm the demand the interest on said amount of Service Tax from them and order for recover under Section 75 of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017. (iii) I impose a penalty of Rs. 10,85,542 /- (Rupees Ten Lakhs Eighty Five Thousand Five Hundred and Forty Two only) upon them under Section 78 of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act 2017. (iv) I drop the charge of service tax so collected from the customers and not deposited with the government exchequer under Section 73A of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017 (v) I drop the demand of interest under Section 73B of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017 (vi) I impose a penalty of Rs. 10000 (Rupees Ten Thousand only) upon ....
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.... ST-3 returns along with Balance Sheet and Profit and Loss Account for the period from October-2014 to June-2017, it was noticed that during the period from financial year 2014-15 (October, 2014) to 2017-18 (upto June, 2017), appellant received huge consideration from the M/s Purvanchal Vidyut Vitran Nigam Limited (M/s PVVNL as well as many other service recipients. On comparing the same with the ST-3 returns filed by the appellant, it has been noticed that the appellant has not shown the actual amount of consideration received from the service receiver in their ST-3 with intent to evade payment of service tax. 2.5 In spite of several letters and summons the appellant did not provide the details of material supplied free of cost by the Electricity Department. 2.6 As per Rule 2A Service Tax(Determination of Value) Rules, 2006, the Electricity Department was not entitled to claim abatement of 60% on the gross amount if fair market value of the material supplied free of cost as cable. GI pipe etc. was not included in the total amount charged for the work contract. Further, as per Entry No. 9 of the table annexed with the Notification No 30/2012-ST dated 20-06-2012 provided that ....
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....s been disposed off as per the impugned order. 2.11 Hence this appeal. 3.1 I have heard Shri Sanjay Kumar, Advocate for the appellant and Shri Santosh Kumar, Authorized Representative for the revenue. 3.2 Arguing for the appellant learned counsel submitted that: ⮚ Erroneously the benefit of exemption in respect of construction of check dams for UP Project Corporation Ltd has been denied. ⮚ Erroneously the benefit of exemption in respect of electrification and high mast light works executed for Krishi Utpadan Mandi Parishad (KUMP) has been denied. ⮚ Erroneous confirmation of demand on supply of material to Indian Railways. ⮚ Non grant of credit of Service Tax already deposited while confirming the demand that against the appellant. ⮚ Penalties imposed are unsustainable in law. 3.3 Authorized representative re-iterated the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of argument. 4.2 Impugned order records the findings as follows: "4.3 The impugned order has been issued confirmin....
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.... water supply do not appear to be in consonance with the S. No.12(d) as the said condition is linked to S. No. 12(e) of the Notification. 4.4.3 The provisions of the notification provides for exemption to specified services if the same have been provided by the Government, a local authority or a governmental authority. Therefore the status of service recipient whether the Government, a local authority or a governmental authority is required in the instant case. On going through the statutory definitions of the Government, a local authority or a governmental authority, it is found as under: SECTION B (26A) "Government" means the Departments of the Central Government, a State Government and its Departments and a Union. territory and its Departments, but shall not include any entity, whether created by a statute or otherwise, the accounts of which are not required to be kept in accordance with article 150 of the Constitution or the rules made thereunder; Section 65 (31) "local authority" means - (a) a Panchayat as referred to in clause (d) of article 243 of the Constitution: b) (b) a Municipality as referred to in clause (e) of article 243P....
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....nd High Mask Light to M/s Krishi Utpadan Mandi Parishad which is exempted in terms of exemption provided at S. No,12, 13 and 14 of the Notification No.25/2012-ST dated 20.06.2012 claiming that M/s Krishi Utpadan Mandi Parishad to be governmental authority as the same is statutory authority created under U.P. Krishi Mandi Adhiniyam, 1964. 4.5.1 In the impugned order, it has been held that exemption is not allowed as these services have not been provided to any local authority of governmental authority. 4.5.2 In order to ascertain the eligibility of exemptions under S. No. 12, 13 and 14 of the Notification No.25/2012ST dated 20.06.2012, it is necessary to go through the provisions of S. No.12, 13 and 14 of the Notification No.25/2012-ST dated 20.06.2012 under which the appellant has sought exemption. The relevant provisions are as under: S. No. 12. ........ S. No."12A. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of- (a) a civil structure or any other original works mea....
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.... the BOQ alongwith the work order provides name of work as extension of L.T Line and Lighting arrangement at NMY, Bindki. Similarly work order dated 30.03.2016 is for repair of internal and repair of sodium lamp but BOQ details provides name of work as Internal electrification in 'C' Type shop 3 No.'s, service connection work, construction of L.T. Line and lighting arrangement and Internal electrification 'C' Type shops. It is seen that details of name of work orders are mismatching and the work details do not reveal the exact nature of the work 4.5.4 It is seen that appellant has not provided any agreement/ contract document with complete details to show that the services provided by them to M/s Krishi Utpadan Mandi Parishad pertains to a civil structure or any other original work meant predominantly for use other than for commerce, industry, or any other business. Since the exemption laid down in the S. No.12A of the Notification No.25/2012-ST dated 20.06.2012 is for specified works with the condition of use other than for commerce, industry or any other business or profession, it is seen that the appellant has failed to show that services provided by....
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....g the correct amount in the statutory returns. The short payment of Service Tax could be detected only during the course of enquiry conducted by the Department. Thus, it is a clear case of suppression of facts and contravention of the statutory provisions, with intent to evade payment of Service Tax. Thus, I find that extended period of limitation has been rightly invoked in this case for confirming the demand along with the interest and penalty under Section 78 of the Act. 4.8 I further hold that contravention of section 66, 66B, 67, 68 of the Act read with Rule 6 of the Service Tax Rules, 1994 is apparent as per details /documents available and therefore, penalties under Section 77(1)(b) and 77(1)(c) of the Act have been rightly imposed in the impugned order. 4.3 I find that the issue in very narrow compass, and the issue that need to be first determined is in respect of invocation of extended period of limitation for making this demand. From the perusal of the impugned order it is evident that the entire issues for which the demand has been confirmed is in respect of the interpretation of the entries 12, 12A, 13 & 14 in the Notification No 25/2012-ST. Appellant has c....
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...., in the facts and circumstances of this case, we do not find that there was any suppression of relevant facts and therefore extended period of limitation cannot be invoked. For the same reasons we also hold that the appellants are not liable to any penalty." Hon'ble Kerala High Court has in case of Cochin Minerals & Rutiles Ltd. [2010 (259) E.L.T. 182 (Ker.)] observed as follows: 10. The learned counsel for the appellant therefore very strenuously argued that the Tribunal erred in allowing the appeal of the respondent herein. The learned counsel placed reliance on the following judgments of the Supreme Court. In Continental Foundation Jt. Venture v. Commr. of C.Ex., Chandigarh-I - 2007 (216) E.L.T. 177 (S.C.) at paragraph 10, the Supreme Court considered the meaning of the expression 'suppression' occurring under the proviso to Section 11A(1) of the Central Excise Act and held as follows : "10. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or 'collusion' and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it w....
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....malpractice the recovery of duty can only be for a period not exceeding one year. But in case the non-payment etc. of duty is intentional and by adopting any means as indicated in the proviso then the period of notice and a priory the period for which duty can be demanded gets extended to five years." 11. An examination of the above three judgments makes it abundantly clear that it is not in every case where there is short levy or short payment or non levy, etc. that the extended period of limitation is made available to the department for recovery of the amount of tax which escaped assessment. It is only in those cases where there is wilful and deliberate suppression of the fact, such extended period of limitation is available to the department. An 'element of deception or malpractice' is a necessary concomitant of wilful and deliberate suppression of fact. The Supreme Court also opined that in order to invoke the extended period of limitation under the proviso to Section 11A(1) of the Act, there must be some positive act other than mere inaction or failure on the part of the manufacturer. 4.4 Thus I find that the demand made in respect of receipts from M/s UPPCL and M....
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....il Procedure Code, similarly Section 11 of the Civil Procedure Code uses the phrase 'matter which might or ought to have been a ground of attack'. It thus appears that, though there are several causes of action available to a plaintiff, if all the cause of action are relating to the subject in dispute, then Order II, Rule 1 obliges the plaintiff to include all those causes of action in one suit, if it is practicable for the plaintiff to do so. Now, if a plaintiff disregards the mandate of Order II, Rule 1 and institutes a suit leaving out some grounds available to him on the subject in dispute and subsequently institutes a suit on the grounds which were left out from the earlier suit, then in case the earlier suit has already been finally decided then Section 11 of the Civil Procedure Code will bar the subsequently instituted suit, but in case the previously instituted suit is still pending then, in my opinion, the provisions of Section 9 of the Civil Procedure Code would bar such a suit. Institution of a suit contrary to the scheme of the Civil Procedure Code, in my opinion, has to be said to be barred by necessary implication. In my opinion, it cannot be said that the Civil Court....
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....ase in hand and the order passed by the Hon'ble Punjab & Haryana High Court, the respondents are justified in contending that it is not open for the appellants to challenge the final finding by way of appeal and only rennedy available at this stage to the appellants is to approach Designated Authority in review proceedings under Rule 23 of Anti-Dumping Rules in terms of the order of the Hon'ble High Court." In the case of CCE Vs M/s Haryana Steel & Alloys Ltd. 2011 (271) ELT 108 (Tri.-Del.) this Tribunal has held as follows:- "7.As far as the appeal by the assessee is concerned, the question of Tribunal going into the merits of the case at the instance of the assessee does not arise at all. The liability arising on merits as confirmed by the adjudicating authority was accepted by the assessee and though initially sought to be challenged it was specifically given up in the course of hearing of the appeal before the lower appellate authority and the same has been clearly recorded by the Commissioner (Appeals) in the impugned order. Being so, it is too late for the assessee to make any grievance about confirmation of demand by the adjudicating authority. Besides, once it i....