2022 (4) TMI 135 - AT - Service Tax

Works contract services - distribution or transmission of electricity - time limitation covering period 01.07.2012 to 31.03.2014 - main argument of the appellant appeared to be that the services undertaken by them are covered by the Serial No. 29 (h) of Exemption Notification 24/2012-ST dated 20.06.2012 and M/s APDCL and CAEDCL are covered under the definition of electricity transmission or distribution utility in terms of Clause 48 of Section 65 B (23) of Finance Act, 1994 and also that the services covered under the negative list of Clause 66B of the Finance Act, 1994 - extended period of limitation - penalty - HELD THAT - There is force in the contention of the appellants that the Transmission and Distribution of Electricity in the hands of APDCL/CAEDCL vis-a vis such specific customers is covered under negative list u/s 66D (k) being naturally bundled as per provisions of section 66F (3) of the Finance Act 1994.; all these impugned works contract activities of appellant are essential activities having direct and close nexus with transmission and distribution of electricity would be covered by the exemption and distribution of electricity extended under various notifications; therefore, the taxability of the related/ ancillary services are required to be given same treatment as is given to the single service, which gives such bundle its essential character, namely, transmission and distribution of electricity; moreover, one cannot think of transmission and distribution of electricity without impugned work contract services by the appellant. The learned commissioner has correctly evaluated the status of the appellants and the activities undertaken by them and concluded correctly that the exemption under Entry No 12 of Mega Exemption Notification 25/2012-ST dated 20.06.12 and Entry No 12A substituted by NN.09/2016-ST dated 01.03.2016 is not available to the appellants. However, as we find that the appellants are eligible for exemption under Serial No. 29 (h) of Notification 25/2012-ST dated 20.06.2012, the acceptability or otherwise of other claims becomes superfluous. Time Limitation - HELD THAT - The appellants have registered themselves and they have not paid any service tax and moreover have been showing nil returns. Therefore, the Department had no occasion to consider the taxability of the service rendered by the appellants. Having suppressed / not disclosed material facts to the Department the appellants cannot take a plea that extended period cannot be invoked - extended period has been rightly invoked - However, as it is found that on merits, the appellants are eligible for exemption under Serial No. 29 (h) of Notification 25/2012-ST dated 20.06.2012, the issue of limitation does not affect the outcome of the case. Penalties - HELD THAT - The penalty has been imposed correctly for the commission and omission on the part of the appellants. The appeal is partly allowed by way of remand.

Summary

Issues Involved:
1. Taxability of services provided by the appellant.
2. Applicability of exemptions under various notifications.
3. Interpretation of the term "sub-contractor."
4. Time-barred nature of the show cause notice.
5. Imposition of penalties.

Detailed Analysis:

1. Taxability of Services Provided by the Appellant:
The appellant, M/s Kusum Enterprises, provided services such as shifting, construction, dismantling, erecting, and commissioning of power lines and power stations to M/s Assam Power Distribution Company Limited (APDL) and M/s Central Assam Electricity Distribution Company Limited (CAEDCL). The Revenue opined that these services were liable to service tax. The appellant argued that the services were works contract services related to the distribution or transmission of electricity, covered under the negative list of services under Section 66D of the Finance Act, 1994, and were exempt under various notifications.

2. Applicability of Exemptions Under Various Notifications:
The appellant contended that the services provided were exempt under Serial No. 29(h) of Mega Exemption Notification 25/2012-ST dated 20.06.2012, which exempts services provided by a sub-contractor by way of works contract to another contractor providing exempt works contract services. The appellant also claimed that the services were covered under the negative list of Clause 66D of the Finance Act, 1994. The department argued that the services did not fall under the negative list or the exemption notifications as they were not provided by an electricity transmission or distribution utility.

3. Interpretation of the Term "Sub-Contractor":
The appellant argued that they were a sub-contractor and not a main contractor, and hence their services should be exempt. The adjudicating authority and appellate authority contended that the appellant's services were not transmission or distribution services and that the appellant was not a transmission or distribution utility. The Tribunal found that the term "sub-contractor" is not defined under Service Tax Law but should be understood in common parlance. The Tribunal concluded that the services provided by the appellant were essential activities having a direct and close nexus with the transmission and distribution of electricity and were thus exempt.

4. Time-Barred Nature of the Show Cause Notice:
The appellant argued that the show cause notice was time-barred as it was issued on 15.02.2017, covering the period from 01.07.2012 to 31.03.2014. They claimed that mere claiming of exemption does not amount to suppression of facts with intent to evade duty. The department argued that the appellant had not paid any service tax and had shown nil returns, justifying the invocation of the extended period. The Tribunal held that the extended period was rightly invoked due to the appellant's suppression of material facts.

5. Imposition of Penalties:
The appellant argued that penalties under Section 78 could not be invoked as there were no sufficient grounds, and the issue related to interpretation. The department contended that penalties were correctly imposed for the appellant's omissions and commissions. The Tribunal found that penalties were rightly imposed but noted that the issue of penalties became redundant as the appellant was eligible for exemption under Serial No. 29(h) of Notification 25/2012-ST dated 20.06.2012.

Conclusion:
The Tribunal concluded that the appellant's services were exempt under Serial No. 29(h) of Notification 25/2012-ST dated 20.06.2012, and thus, the issue of limitation and penalties did not affect the outcome. The appeal was partly allowed by way of remand.