TaxTMI 
TaxTMI 
2025 (11) TMI 2049
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Finance Act, 1994 and therefore, this delay in itself would render the entire proceedings invalid, has not been dealt with by the Tribunal. He has relied on the judgment of Hon'ble Delhi High Court in the case of Sunder System Pvt Ltd Vs UOI & Ors [2020 (1) TMI 199], wherein, the Hon'ble Delhi High Court quashed the SCN and the order for non-compliance with the time limit prescribed under section 73(4B). He has further submitted that the expression "wherever it is possible to do so" in section 73(4B) implies that where it is not possible to issue the order within the statutory time limit, such delay shall be explained and justified by the adjudicating authority. He has also relied on the judgment in the case of IDFC First Bank Ltd Vs UOI & Ors [2023 (8) TMI 1153]. He has further relied on several other judgments in support that the adjudication process has to be concluded within the time limit prescribed under the statute and the entire proceedings get vitiated on the grounds of delay itself. This submission that OIO is barred by limitation has not been considered by the Tribunal and therefore, it amounts to an error apparent on record. b) That, in the given factual matr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orks Contract Service (WCS) and therefore, they are entitled for benefit under Entry 29(h) of Notification No. 25/2012 dt.20.06.2012. In this regard, he submitted that they were using explosives, lubricants, spare parts, etc., in carrying out the activities of site formation, which were leviable to VAT and the same was paid on such purchases. Further, collection of VAT on such goods is not mandatory condition under section 65B(54) defining Works Contract so long as the goods used are leviable to VAT and once these goods have been used in running the machinery for the purpose of carrying out earth work, the property in goods passes to the main contractor. It is a settled law that property in goods passes on through accretion and therefore, so long as such goods have been used in the activity, property in such goods passed on to the recipient. They have relied on the judgment of Hon'ble Kerala High Court in the case of M/s Enviro Chemicals Vs State of Kerala [2011 (2) TMI 1296], Hon'ble Bombay High Court judgment in the case of CST Vs Matushree Textile Ltd [2003 (8) TMI 478] and Coordinate Bench at Ahmedabad order in M/s SEM Construction Vs CCE & ST [2020 (8) TMI 739]. Further, the o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ord. 5. Heard both sides and perused the records. 6. We have perused the Final Order No. A/30436/2024 dt.20.12.2024 (impugned order) and we note that in the given factual matrix, the Tribunal examined their eligibility under S.No.12(d) of Notification No.25/2012 and also in terms of Entry 29(h) of the Notification No.25/2012. The undisputed fact is that the applicant was a sub-contractor, who was providing Site Formation Services to the contractor. The Tribunal took into account certain judgments cited by the appellant viz., Larsen & Toubro Ltd Vs State of Andhra Pradesh (supra), Prasad Babu Kalyanam Vs CCT, VisakhapatnamGST [2024 (2) TMI 1308 - CESTAT Hyderabad], M/s Saritha Infra & Geo Structures Vs Prl CCT, Visakhapatnam-GST (supra) and M/s Keen & Core Developers Vs CCGST, Greater Noida [2024 (3) TMI 758 - CESTAT Allahabad], and also examined the alternative argument that their work was in the nature of WCS and therefore, covered under Entry 29(h) of the Notification No.25/2012 in view of the submission that they have also been using explosives for blasting and other items like lubricants, spare parts, etc., in connection with use of heavy machinery deployed for the activi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eted by way of plain reading of expression and only when there is any ambiguity or possibility of two different interpretations, the benefit should go to the Revenue, and accordingly, the Tribunal held that when the activity itself is not covered within the ambit of notification, the benefit under S. No. 12(d) of Notification No. 25/2012 would not be admissible. The Tribunal also distinguished the judgments relied upon by the applicant in the case of Prasad Babu Kalyanam Vs CCT, Visakhapatnam-GST (supra). The Tribunals also considered the judgments cited by the applicant in support that even when the activities are being provided indirectly through main contractor then also they are entitled for exemption and held that in the given factual matrix, there are layers in between the applicant and the person, who was referred to as principle contractor, who is actually constructing the dam and therefore, in this case, it cannot be held that applicants have provided service by way of construction of dam. The Tribunal also relied on the judgment in the case of Akash Engineering Services Vs CCT, Visakhapatnam-I [Interim Order No.26/2023 dt.15.12.2023] holding that even when the main contra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ST, Ghaziabad [2016 (41) STR 299 (Tri-Del)] and Prathyusha Associates Shipping Pvt Ltd Vs CCE, C & ST, Visakhapatnam [2014 (36) STR 1145 (Tri Bang)], it was found that they had not adduced any ground that they had bonafide belief of their being not liable to service tax during the material time. The Tribunal felt that the applicants were not sincere about finding out their tax liability and especially when they are engaged in work at such a large scale and therefore, did not find any reason to interfere with the observations of the Adjudicating Authority justifying the invocation of the extended period. 10. We, therefore, find that as far as issues covered at (A) & (B) are concerned, the Tribunal has gone through the factual matrix as well as citations from both sides to arrive at certain conclusion and therefore, the views of the Tribunal were based on their interpretation of various case laws cited by both sides and facts apparent on record. However, we find that as far as issue covered at (C) & (D) are concerned, the Tribunal has, inter alia, held that merely because they were using lubricants, spare parts and explosives, etc., in relation to the execution of work of Site For....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nches and bunds and dressing of entire bunds slope before metal spreading. As regard the rate of the job it is bifurcated into the labour work and metal spreading. This clearly shows that the appellant have not only provided the service of construction of bunds but also supplied the vital material such as un-course, black trap rubble stone and other material, therefore, it is a composite work of Works Contract which includes supply of material and construction of bunds. ......" 11. We find that this aspect, in the light of above judgments cited by the applicant in their grounds of appeal, has not been duly appreciated or examined by the Tribunal in the given factual matrix. Had it been examined in the light of cited case laws, there could have been an alternative view than the conclusion arrived at by the bench. Therefore, to that extent, insofar as their plea regarding benefit under S.No.29(h) of Notification No. 25/2012 is concerned, it has not been adequately examined or dealt with. These judgments have a bearing on deciding whether they are eligible for the benefit under the S.No.29(h) or otherwise. The Tribunal, to that extent, has not examined this aspect in the light of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the decisions need to be referred and discussed in the present judgment." 13. Insofar as grounds for invoking extended period is concerned, we find that the Tribunal has taken a view relying on various judgments cited by both sides and the fact that applicant could not adduce any evidence about their bonafide belief for not paying service tax on the activities being performed by them. Further, the grounds taken for non-invocation of extended period by the appellant was that they had bonafide belief and it was essentially an issue involving interpretation of provisions of law. Moreover, department has not brought any positive evidence to support any deliberate intent to evade duty. We find that even this aspect has not been adequately examined, especially, in the light of the fact that various options and alternatives were available under which the said activity could have remained exempted either under S.No.12(d) or under S.No.29(h) of Notification No.25/2012 and therefore, this could have been a matter of interpretation or their having a genuine bonafide belief about their being providing exempted service. Therefore, the issue of upholding the extended period, as held by the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on record warranting any rectification in the impugned order. We find that if there is any detailed argument required to revisit the conclusion already arrived at then the same could not be considered as an error apparent on record and to that extent, it cannot be covered within the scope of ROM application. To that extent, we find reliance and support in the case laws cited by the Revenue. 16. Therefore, in view of the same, we feel that there are certain apparent errors viz., non-consideration of benefit under S.No.29(h) of Notification No. 25/2012 in the given factual matrix and cited case laws, upholding invocation of extended period by holding that there was no ground for having bonafide belief or its being a matter of interpretation, nor considering request for threshold benefit or treatment of cum-tax value as value for confirming duty. Therefore, these issues would need to have a relook and need to be examined in view of factual matrix of the case, as also, submissions and evidence furnished by the applicant to arrive at the conclusion whether said benefits are admissible or otherwise and also whether extended period is invokable or otherwise. Therefore, we find that to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the Adjudicating Authority is that the appellants had consciously suppressed the fact of providing taxable services and their value and the same came to the knowledge only after the detailed investigation carried out by the officers of DGGI, VZU, Visakhapatnam. He has also relied on the judgment in the case of M/s NGK Infrastructure Ltd Vs CCE & ST, Ghaziabad [2016 (41) STR 299 (Tri-Del)] and also in the case of Prathyusha Associates Shipping Pvt Ltd Vs CCE, C & ST, Visakhapatnam [2014 (36) STR 1145 (Tri-Bang)]. However, we find that insofar as ground of bonafide belief or this being a matter of interpretation of provisions of law, as taken by appellant is concerned, in the context of their having belief that no service tax was liable to be paid by them, their submission has some force inasmuch as there were multiple alternatives available under which they could have considered themselves eligible. Firstly, the belief that they had provided exempted service as they had actually did part work relatable to construction of canal, dam, etc. Secondly, they had provided service to the contractor and the contractor himself has either paid the service tax or was otherwise exempted in r....