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2022 (11) TMI 633 - AT - Service TaxNon-payment of service tax - supply of tangible goods service - renting of JCB - Service provided by appellant is in relation to power transmission tower in the capacity of sub-contractor - suppression of facts or not - extended period of limitation. Renting of JCB - supply of tangible goods - HELD THAT - The appellant have collected the service tax and paid the same to the government exchequer therefore, the same is not under dispute on merit. The service tax demand and payment thereof on supply of tangible goods i.e. renting of JCB is maintained. Executing government contracts of erection, commissioning, installation or construction of power transmission towers - various works/services in relation to transmission of electricity namely concrete foundation, excavation of pits, establishment and maintenance of site for storage of materials relating to power transmission tower in the capacity of sub-contractor - it is alleged that appellant have not discharged the service tax liability on the service provided to their main/principal contractor - HELD THAT - There is no dispute that the appellant have rendered the services of construction activity for concrete foundation of power transmission lines and establishment and maintenance of site for storage of material relating to transmission tower, all these services which are in relation to setting up of transmission tower for transmission of power. The period involved in the present case is 2004-05 to 2008-09, the government has issued a notification giving it retrospective effect under notification no.45/2010-ST dated 20.07.2010 - From the above exemption notification, it is clear that all the taxable service provided by an assessee relating to transmission and distribution of electricity are exempted for the period up to 26th February, 2010. Since in the present case, the period involved is prior to 26th February, 2010 entire period is covered under exemption therefore, the demand on the services in question except the demand on supply of tangible goods are exempted under Notification No.45/2010-ST. From various judgments, it is settled law that all the services provided in relation to transmission of electricity are exempted under notification no.45/2010-ST therefore, in the present case also services being provided are in relation to power transmission tower, the same are exempted hence the demand is not sustainable on merit - reliance can be placed in the case of M/S UP RAJKIYA NIRMAN NIGAM LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, MEERUT-I 2015 (8) TMI 66 - CESTAT NEW DELHI . Extended period of limitation - suppression of facts or not - HELD THAT - The appellant has acted as a sub-contractor. Earlier, there were contrary clarifications by the government that the sub-contractor is not liable to service tax when the main contractor is discharging service. Subsequently vide circular dated 23.08.2007, the C.B.E.C has taken a U-turn and withdrawn the earlier stand and clarified that the sub-contractor is liable to pay the service tax - It is settled law that when the issue is free from doubt and matter is referred to larger bench, the larger period of limitation cannot apply. In the present case, it is not only the larger bench decision which settled the law law but there were contrary circulars of the board on the issue of payment of service tax by the sub-contractor. In view of this position, there is no suppression of fact or any mala fide intention to evade payment of service tax on the part of appellant, therefore, the demand beyond one year is not sustainable on limitation also. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Non-payment of service tax by the appellant. 2. Applicability of exemption notification No. 45/2010-ST. 3. Limitation period for raising the demand. 4. Maintenance of complete records and bona fide belief. 5. Penalty imposition. Issue-wise Detailed Analysis: 1. Non-payment of Service Tax: The appellant, a proprietor of M/s. Bhumi Construction, provided services related to power transmission towers from FY 2004-05 to 2008-09 but did not discharge the service tax liability for these services. A show cause notice dated 08.09.2009 raised a demand for Rs. 1,17,30,336/- along with interest and penalty, invoking the extended period of limitation under section 73(1) of the Finance Act, 1994. The adjudicating authority confirmed the demand, leading to the present appeal. 2. Applicability of Exemption Notification No. 45/2010-ST: The appellant argued that services related to power transmission towers are exempt from service tax under Notification No. 45/2010-ST, which exempts all taxable services relating to the transmission and distribution of electricity until 26.02.2010. The Tribunal referred to several judgments, including those in the cases of Kedar Constructions, Noida Power Company Ltd., and U.P. Rajkiya Nirmaan Nigam Ltd., which supported the appellant's claim. It was concluded that the services provided by the appellant are exempt under the said notification, making the demand for service tax unsustainable. 3. Limitation Period for Raising the Demand: The appellant contended that the show cause notice, issued on 08.09.2009, demanded service tax for the period October 2004 to March 2009, which is beyond the one-year limitation period specified in Section 73(1) of the Finance Act, 1994. The Tribunal noted that there were conflicting clarifications and judgments regarding the liability of sub-contractors to pay service tax, which created doubt. It is settled law that when an issue is not free from doubt and is referred to a larger bench, the extended period of limitation cannot apply. Therefore, the demand beyond one year was deemed unsustainable on the grounds of limitation. 4. Maintenance of Complete Records and Bona Fide Belief: The appellant maintained complete records and believed in good faith, based on various decisions, that the services provided were not taxable. The Tribunal observed that where complete records are maintained and there is no clandestine activity, and non-payment of service tax is due to a bona fide belief, the larger period of limitation cannot apply. This view was supported by judgments in cases such as Steelcast Ltd. and Religare Securities Ltd. 5. Penalty Imposition: Given that the demand for service tax was found unsustainable on both merit and limitation grounds, the Tribunal also set aside the penalties imposed on the appellant. Conclusion: The Tribunal concluded that the services provided by the appellant were exempt under Notification No. 45/2010-ST, and the demand was not sustainable on merit. Additionally, the demand was barred by limitation, and there was no suppression of facts or mala fide intention by the appellant. Consequently, the penalties were also set aside. The appeal was allowed, and the impugned order was modified accordingly.
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