2024 (4) TMI 232 - AT - Service Tax

Levy of service tax or exemption from tax - Erection, Commissioning or Installation service - Extended period of limitation. Extended period of limitation - demand raised only on the basis of audit objections without any further investigation by the department and without satisfying the requirement for invoking the extended period of limitation under Sub-section 4 of Section 11A of the Central Excise Act, 1944 - HELD THAT - An identical issue of invoking the extended period of limitation based on audit objections was considered by the co-ordinate Bench in the case of M/S. DELTA POWER SOLUTIONS INDIA PVT. LTD. VERSUS COMMISSIONER, CUSTOMS, CENTRAL EXCISE SERVICE TAX, COMMISSIONERATE, HAPUR 2021 (11) TMI 174 - CESTAT NEW DELHI and the Division Bench of the Tribunal after considering the various decisions of the Hon ble Apex Court in EASLAND COMBINES VERSUS COLLECTOR OF C. EX., COIMBATORE 2003 (1) TMI 107 - SUPREME COURT has held In the present case, what is seen is that the audit was conducted between June 17, 2011 to June 22, 2011 and the show cause notice refers to this audit only. The notice, therefore, should have been issued within one year from the relevant date and there is no good reason as to why the Central Excise Officer should have waited till March 19, 2015 to issue the show cause notice. The extended period of limitation, for this reason alone, could not have been invoked. Levy of service tax or exemption from tax - Erection, Commissioning or Installation service - claim of the appellant is that the services provided by them to CPWD and Airport authority are in the nature of works contract as per their agreement and are exempted from payment of service tax - HELD THAT - The stand of the department that appellant is liable to pay service tax under the category of Erection, Commissioning or installation service is also not tenable in view of the decisions of the Tribunal in the case of GOA FRIENDS ENGINEERING ELECTRICALS PVT LTD VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE, PANAJI 2021 (9) TMI 510 - CESTAT MUMBAI wherein the Tribunal has held In the facts and circumstances narrated supra, the retrospective effect of the exemption is applicable to the electrical works executed, and the maintenance undertaken, by the appellant for Goa State Industrial Development Corporation (GSIDC) and Goa Medical College (GMC). Further it is also found that the services rendered by the appellant to CPWD, Airport falling under the category of works contract as per their agreement and it cannot be taxed in any other category as held by the Tribunal in the case of M/S SHREE MOHANGARH CONSTRUCTION CO. VERSUS COMMISSIONER OF CENTRAL EXCISE SERVICE TAX, JAIPUR 2021 (3) TMI 519 - CESTAT NEW DELHI wherein, it has been held that works contract service could not be equated either with a contract for sale of goods or a contract for supply of services simplicitor and service tax can only be demanded works contract service after introduction of a charge on works contract service and not under any other head either before introduction of service or thereafter. Thus, in the instant case even if assessee had not fulfilled conditions required under Works Contract Composition Scheme, there was no case for department to charge service tax on service provided by assessee under any other head. The impugned order is not sustainable on merit as well as limitation - appeal allowed.

Summary

Issues Involved:
1. Invocation of extended period of limitation.
2. Liability to pay service tax under the category of Erection, Commissioning or Installation service.
3. Imposition of penalties under Sections 76 and 78 of the Finance Act.

Summary:

1. Invocation of Extended Period of Limitation:
The Tribunal examined whether the extended period of limitation could be invoked based on audit objections without further investigation. The relevant provisions of Section 11A of the Central Excise Act were discussed, highlighting that the suppression of facts must be deliberate to evade payment of duty. The Tribunal cited several Supreme Court decisions, including Pushpam Pharmaceuticals and Anand Nishikawa Co. Ltd., which clarified that mere non-payment or omission does not amount to suppression unless it is deliberate. The Tribunal concluded that the entire demand was barred by limitation as the department failed to prove deliberate suppression of facts.

2. Liability to Pay Service Tax:
The Tribunal addressed whether the appellant was liable to pay service tax under the category of Erection, Commissioning or Installation service. The appellant argued that their services to CPWD and Airport Authority were in the nature of works contract and exempted from service tax. The Tribunal referred to Section 65(105)(zzzza) of the Finance Act, 1994, which excludes works contracts related to airports from service tax. The Tribunal also cited the Board's Circular No. 116/10/2009-ST and decisions in cases like Goa Friends Engineering & Electricals (P.) Ltd. and Shree Mohangarh Construction Co., which supported the appellant's claim. The Tribunal held that the services provided were indeed works contracts and exempt from service tax.

3. Imposition of Penalties:
Regarding the imposition of penalties under Sections 76 and 78 of the Finance Act, the Tribunal noted the appellant's bona fide belief that their services were exempt. The Tribunal referenced the decision in Commissioner of C.Ex. Ludhiana Vs. Pannu Property Dealers and invoked Section 80 of the Finance Act to drop the penalties, acknowledging the appellant's genuine belief in their exemption status.

Conclusion:
The Tribunal set aside the impugned order, holding that the demand was barred by limitation and the services provided were exempt from service tax. The appeal was allowed with consequential relief as per law.