2018 (12) TMI 1428 - AT - Service Tax

Non-payment of service tax - erection and commissioning or installation services - maintenance or repair service - scope of SCN - Held that - The appellant are engaged in providing various services to Maharashtra State Electricity Distribution Company Ltd (MSEDCL), Ratnagiri and other places relating to distribution of electricity during the period 2008-09 and 2009-10. The said services are held to be not leviable to service tax by virtue of Notification No. 45/2010-ST dated 20th July 2010 in exercise of powers conferred by Section 11C of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. Whether the appellant are eligible to the benefit of the said Notification or otherwise was not raised before the authorities below and, therefore, the same was not examined. Thus, in the interest of justice, this issue needs to be analysed - appeal allowed by way of remand.

Summary

Issues:
Appeal against order-in-appeal regarding non-payment of service tax for services provided to a company. Eligibility for exemption under Notification No. 45/2010-ST not raised before lower authorities.

Analysis:
The appeal was filed against an order-in-appeal dated 25th June 2015 passed by the Commissioner of Central Excise (Appeals), Pune – II at Goa. The appellant, registered with the service tax department, provided services to a company but did not pay service tax for the relevant period of 2008-09 and 2009-10. A show cause notice was issued for recovery of service tax, interest, and penalty. The demand was confirmed after adjudication, leading to the appeal. The appellant argued that the services provided related to transmission and distribution of electricity, and they should be exempt from service tax under Notification No. 45/2010-ST dated 20th July 2010, which allowed retrospective exemption until 26th February 2010. However, this argument was not raised before the lower authorities, prompting the need for further examination.

The authorized representative for Revenue supported the findings of the Commissioner (Appeals) and suggested remanding the case since the eligibility under Notification No. 45/2010-ST was not raised earlier. Upon hearing both sides and reviewing the records, the Tribunal observed that the services provided by the appellant were related to the distribution of electricity to Maharashtra State Electricity Distribution Company Ltd and other places during the period in question. The Tribunal noted that these services were not leviable to service tax under Notification No. 45/2010-ST dated 20th July 2010. Since the issue of eligibility for this notification was not raised before the lower authorities, the Tribunal decided to set aside the impugned order and remand the matter to the adjudicating authority for a detailed examination of whether the appellant are eligible for the benefit of the said notification.

In conclusion, the appeal was allowed by way of remand to the adjudicating authority for further analysis of the appellant's eligibility for exemption under Notification No. 45/2010-ST dated 20th July 2010, which was not previously considered by the lower authorities.