2021 (2) TMI 893 - AT - Service Tax

Site Formation and Clearance Excavation and Earth Moving and Demolition Services - benefit of the mega Exemption Notification No. 25/2012-ST dated 20 June, 2012 - availability of exemption under Serial Number 13(a) and 14(a) could not be taken up before Commissioner due to lack of proper representation by the Advocate - HELD THAT - From the description of the contracts in the Show Cause Notice as well as order in original, it is found that it is quite likely that many of them may relate to roads, canals and railways. If that is the case then the Appellant might be entitled to benefits under Serial Number 12, 13 and 14 of the Service Tax Notification in respect of services provided by them subject to fulfillment of the other necessary conditions. The learned Counsel for Appellant has pointed out that the matter was not represented properly before the lower authority by Advocate. These exemption granted in entries at Serial Number 12, 13 and 14 of Notification No. 20/2012-ST dated 20 June, 2012 could not be examined by the original adjudicating authority as the Advocate failed to point them out. Provision of service directly to the Government - Reliance on the decision of Tribunal in case of M/S SARITHA INFRA GEO STRUCTURES VERSUS PRINCIPAL COMMISSIONER OF CENTRAL TAX VISAKHAPATNAM CENTRAL GST COMMISSIONERATE 2019 (5) TMI 75 - CESTAT HYDERABAD - HELD THAT - The said decision was not before the original adjudicating authority. The matter also needs to be re-examined in light of the decision cited by the Appellant. The matter needs to be re-examined and, therefore, in the interest of justice, the impugned order is set aside and matter is remanded to the Commissioner for fresh adjudication keeping all the issues open - Appeal allowed by way of remand.

Summary

Issues:
1. Demand of service tax under Site Formation and Clearance Excavation and Earth Moving and Demolition Services for 28 contracts.
2. Entitlement to benefit under Mega Exemption Notification No. 25/2012-ST dated 20 June, 2012 for various contract entries.
3. Services provided to Government indirectly through subcontractors.
4. Refund of pre-deposit made by the Appellant.

Analysis:

Issue 1:
The Appeal was filed against the demand of service tax for 28 contracts under Site Formation and Clearance Excavation and Earth Moving and Demolition Services. The Appellant argued that they had paid the tax for some contracts and were entitled to the benefit of the Mega Exemption Notification for the remaining contracts. They requested a fresh adjudication to examine the relief under all related entries of the notification.

Issue 2:
The Appellant claimed entitlement to exemption under Serial Number 12(d), 13(a), and 14(a) of the Mega Exemption Notification. They argued that the lower authorities failed to consider certain entries of the notification, and proper representation was lacking. The Tribunal noted that if the contracts related to roads, canals, or railways, the Appellant might be eligible for benefits under specific entries of the Notification, subject to fulfillment of conditions.

Issue 3:
Another issue raised was the provision of services to the Government indirectly through subcontractors. The Appellant cited a Tribunal decision in a similar case, which was not considered by the original adjudicating authority. The Tribunal decided that this issue needed re-examination in light of the cited decision.

Issue 4:
Regarding the refund of pre-deposit, the Appellant undertook not to claim it, showing their bona fides. The Tribunal set aside the impugned order and remanded the matter to the Commissioner for fresh adjudication, keeping all issues open for consideration. The Appeal was allowed to the extent indicated, and the Appellant agreed not to seek a refund of the pre-deposit already made.

This detailed analysis of the judgment highlights the key issues raised, arguments presented, and the Tribunal's decision to remand the matter for fresh adjudication, ensuring all relevant aspects are considered comprehensively.