2021 (10) TMI 703 - AT - Service Tax

Dispute mitigation scheme by enactment of chapter VI in Finance Act, 2013 and notification of Service Tax Voluntary Compliance Encouragement Rules, 2013 - computation of liability undertaken by the competent authority on submission of their declaration dated 13 th December 2013 was in error - incorrect disqualification attached to substantially false declarations for denying the privileges of escapement from interest and penal detriments appended to non-payment/short-payment of tax liability - coverage of exclusion/exemption to maintenance of lifts - HELD THAT - The catena of decisions cited by Learned Counsel lead to a conclusion that are not in consonance with the findings of the adjudicating authority in the impugned order. Every authority empowered under Finance Act, 1994 is bound by, and required to adhere to, the decisions of appellate authorities. Failure to do so is demonstrative of lack of judicial discipline. Discarding of these decisions, binding as they are, is tantamount to disinclination to be bound by the law as interpreted. It does not behove us, as the appellate authority, to allow such a state of affairs to permeate the system of adjudication. The competent authority is directed to test the applicability of these decisions to the activities covered in the 29 disputed invoices for ascertainment of appropriate taxable service before 1st July 2012 and of appropriate enumeration in the exemption notification for the period thereafter. To enable such conscious and responsible exercise of adjudicatory jurisdiction, we set aside the impugned order and remand the matter back to the original authority for a fresh decision on the correctness of the proposals in the show cause notice - as the genesis of the proceedings lies in an amnesty scheme promulgated by the Central Government as far back as 2013, it is incumbent on the adjudicating authority to decide the matter expeditiously and not later than three months from the receipt of this order. Appeal disposed off.

Issues Involved:
1. Correctness of availing CENVAT credit.
2. Eligibility for tax exclusions under specific notifications and legislative provisions.
3. Validity of rejection of the appellant's declaration and computation of tax liability.
4. Applicability of exemptions for services rendered to non-commercial entities.
5. Classification of services and applicability of tax exemptions for sub-contractors.
6. Consideration of judicial precedents and circulars in the adjudication process.

Detailed Analysis:

1. Correctness of Availing CENVAT Credit:
The appellant, M/s Power Link Engineers, had utilized CENVAT credit amounting to ?59,58,408 during 2007-12 for tax payments under the Finance Act, 1994. They contested the computation of liability by the competent authority, asserting that their declaration dated 13th December 2013 was wrongly deemed "substantially false," resulting in denial of benefits under the Service Tax Voluntary Compliance Encouragement Rules, 2013.

2. Eligibility for Tax Exclusions:
The appellant excluded receipts of ?1,09,59,094 from tax, citing activities under notification no. 25/2012-ST dated 20th June 2012 and legislative exclusions in section 65 (105) (zzq), (zzzh), and (zzd) of the Finance Act, 1994. The competent authority partially agreed, allowing exclusion of ?54,86,082 but denied ?54,72,932.

3. Validity of Rejection of Declaration:
The appellant argued that the rejection of their declaration and confirmation of short payment of ?6,63,564 under section 73 of the Finance Act, 1994, along with interest and penalties, was incorrect. They claimed that the tax remitted during the disputed period was not considered in the net liability calculation.

4. Applicability of Exemptions for Non-Commercial Entities:
The appellant contended that services provided to entities like the Public Works Department (PWD) and Maharashtra Labour Welfare Board, which are non-commercial, should not be taxed. They referenced Tribunal decisions in Khurana Engineering Ltd and Patel Infrastructure Pvt Ltd, which supported their claim. The adjudicating authority was directed to verify the applicability of these exemptions for services rendered to non-commercial entities.

5. Classification of Services and Sub-Contractor Exemptions:
The appellant argued that as a sub-contractor, they were entitled to exemptions, supported by Tribunal decisions in RB Chy Ram Khattar & Sons and circular no. 147/16/2011-ST. The adjudicating authority was instructed to consider these precedents and circulars in determining the taxability of services provided by sub-contractors.

6. Consideration of Judicial Precedents and Circulars:
The Tribunal noted that the adjudicating authority failed to consider relevant judicial precedents and circulars, such as decisions in Harsh Constructions Pvt Ltd, Industrial Engineering Systems, and Bharat Bhushan Gupta & Company. These decisions clarified the non-commercial nature of certain services and the applicability of exemptions. The Tribunal emphasized the need for judicial discipline and adherence to appellate decisions.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the original authority for a fresh decision, directing a thorough examination of the disputed invoices and application of relevant judicial precedents and circulars. The adjudicating authority was instructed to expedite the decision within three months from the receipt of the order.

Order Pronouncement:
The appeal was disposed of on these terms, with the order pronounced in the open court on 13/10/2021.

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