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2017 (12) TMI 1194 - AT - Service TaxWorks Contract Service - transmission and/ or distribution of electricity - benefit of N/N. 45/2010-ST dt. 20.7.2010 - CBEC Circular No. 123/5/2010-TRU dt. 24.5.2010 - Held that - N/N. 45/2010-ST dt. 20.7.2010 issued under Section 11C of the Central Excise Act, 1944 exempts for the period upto 26th day of February 2010 for all taxable services relating to distribution of electricity. Vide N/N. 11/2010-ST dt. 27.2.2010 the taxable services provided for transmission of electricity have been exempted - From the above, it is apparent that any services provided for transmission of electricity are exempted for the entire period. The services provided relating to distribution of electricity are exempted upto 21st day of June 2010 and all services relating to transmission of electricity are exempted upto 26th day of February 2010 in terms of N/N. 45/2010 read with N/N. 11/2010-ST. - The order in so far as it relates to the service provided in respect of transmission and distribution of electricity is set aside and the matter is remanded to the Commissioner for fresh adjudication after examining all the contracts individually for this purpose. Benefit of N/N. 1/06 - appellants failure to provide the necessary documentary evidence in support of the claim that fulfill the condition of the notification - Held that - The appellant has contended that both these conditions can be verified and returns filed by them and by the invoices issued by the appellant itself apparent that these conditions can easily be verified and the Commissioner has not examined the issue in proper perspective and has simply dismissed the defense without application of mind - matter is remanded to the Commissioner. Abatement in respect of GTA service - N/N. 32/04-ST - denial on account of appellant failure to submit the necessary documents - Held that - The Revenue has prescribed procedure in this regard wherein GTA service recipient can make necessary declaration and on that basis abatement under N/N. 32/04-ST is allowed. The appellant has not followed the said procedure which has been prescribed vide F. No. 166/13/2006 CX.4 dt. 12.3.2007, wherein CBEC has clarified that if the service provider makes a declaration on the consignment notes then the said declaration would be accepted. It is seen that the appellant have neither followed that procedure nor made any attempt to satisfy the said notification. In these circumstances appeal filed by the appellant cannot be entertained - appeal dismissed. Appeal is partly allowed by way of remand and partly dismissed.
Issues Involved:
1. Demand of service tax under Works Contract Service, Erection, Commissioning or Installation Service, and Transport of Goods by Road Service. 2. Benefit of Notification No. 45/2010-ST. 3. Abatement under Notification No. 1/2006-ST for erection, commissioning, or installation service. 4. Abatement under Notification No. 32/2004-ST for GTA service. Issue-wise Detailed Analysis: 1. Demand of Service Tax: The appeal was filed against the confirmation of demand for Service Tax and the imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The demand was confirmed under Works Contract Service, Erection, Commissioning or Installation Service, and Transport of Goods by Road Service. 2. Benefit of Notification No. 45/2010-ST: The appellant contended that their activities involving the supply, construction, erection, and commissioning of high tension and low tension lines, and distribution transformer centers should be exempt from service tax under Notification No. 45/2010-ST dated 20.7.2010. This notification exempts taxable services related to the transfer and distribution of electricity. The appellant argued that services provided to various entities like Executive Engineer, LWPD, Wardha, and others were non-taxable as they involved laying of cables, shifting of overhead cables, and other activities related to the distribution of electricity, as clarified in the Board Circular No. 123/2010-TRU dated 24.5.2010. 3. Abatement under Notification No. 1/2006-ST: The appellant argued that the benefit of abatement under Notification No. 1/2006-ST was denied on the grounds of insufficient documentary evidence. The notification stipulates that the CENVAT credit of duty on inputs or capital goods or service tax on input services should not be taken, and the service provider should not avail the benefit under Notification No. 12/2003-Service Tax. The appellant claimed that these conditions were fulfilled and could be verified from their records and returns, but the Commissioner did not examine the issue properly. 4. Abatement under Notification No. 32/2004-ST for GTA Service: The appellant contended that the benefit of abatement of 75% of the gross amount of freight under Notification No. 32/2004-ST was denied due to lack of documentary evidence. They argued that the Goods Transport Agency (GTA) is not entitled to avail any CENVAT credit nor sell goods during the provision of transportation services. The Commissioner, however, stated that the appellant failed to follow the prescribed procedure for claiming abatement, as clarified by CBEC in F. No. 166/13/2006 CX.4 dated 12.3.2007. Judgment: Works Contract Service and Transmission/Distribution of Electricity: The Tribunal found that services related to the transmission and distribution of electricity were exempt under Notification No. 45/2010-ST and Notification No. 11/2010-ST. The Commissioner failed to apply his mind and examine the contracts individually. The order related to services provided in respect of transmission and distribution of electricity was set aside, and the matter was remanded to the Commissioner for fresh adjudication. Erection, Commissioning, or Installation Service: The Tribunal noted that the Commissioner did not properly verify the appellant's compliance with the conditions of Notification No. 1/2006-ST. The order denying abatement was set aside, and the matter was remanded to the Commissioner for re-examination. GTA Service: The Tribunal upheld the denial of abatement under Notification No. 32/2004-ST, as the appellant did not follow the prescribed procedure for claiming the benefit. The appeal concerning the denial of abatement for GTA service was dismissed. Conclusion: The appeal was partly allowed by way of remand concerning the services related to transmission and distribution of electricity and erection, commissioning, or installation service. The appeal was dismissed regarding the denial of abatement under GTA service.
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