2019 (3) TMI 1506 - AT - Service Tax

Erection, Commissioning and Installation Services - Management, Maintenance and Repair Services - business of erection of transmission lines for State Electricity Boards, electrification for Indian Railways, setting up of high voltage sub-stations etc. - demand of service tax - Held that - Though department alleges that appellant collected service tax, there is no evidence to support this allegation. Further the show cause notice does not invoke Section 73A of Finance Act, 1994. The appellants undertook turnkey projects of laying electrical cables between grids and also construction of sub-station between the grids, which is incidental activity of laying the electrical cables. The Board s Circular No. 332/05/2010-TRU, dated 24.05.2010 has clarified that the activity of laying of electrical cables between grids does not fall within the ambit of any taxable services. Further, N/N. 45/2010-ST, dated 20.07.2010 expressly states that no service tax is payable on services relating to transmission and distribution of electricity. Demand do not sustain - appeal allowed - decided in favor of appellant.

Issues:
1. Demand of service tax under Erection, Commissioning and Installation Services Management, Maintenance and Repair Services.
2. Applicability of exemption notifications related to transmission and distribution of electricity.
3. Requirement of clearance from Committee on Disputes for filing appeal by public sector undertakings.

Analysis:

Issue 1: Demand of service tax under Erection, Commissioning and Installation Services Management, Maintenance and Repair Services
The appellants were engaged in various services and were registered under different categories. The dispute arose when the appellants did not deposit service tax amounting to a significant sum to the Government account for a specific period, despite having received service charges along with service tax from customers. The original authority confirmed the demand along with interest and imposed penalties, leading the appellants to approach the Tribunal. The key contention from the appellants was that they had not collected any service tax from their customers, disputing the allegation made in the show-cause notice. The Tribunal examined the activities undertaken by the appellants, including laying electrical cables and construction of sub-stations, and found that these activities were exempt from service tax as per relevant notifications and circulars. The Tribunal referred to a previous case to support its decision and ultimately set aside the demand under this category.

Issue 2: Applicability of exemption notifications related to transmission and distribution of electricity
The Tribunal extensively discussed the exemption notifications related to the transmission and distribution of electricity. It highlighted Notification No. 32/2010-ST and Notification No. 45/2010-ST, which exempted service tax on activities related to the distribution of electrical energy by authorized entities. The Tribunal emphasized that the Central Government's clear policy choice exempted the levy of service tax on such activities. By considering these notifications, along with a relevant circular and a previous case law, the Tribunal concluded that the demand for service tax under the category of Erection, Commissioning and Installation Services was not sustainable and set it aside.

Issue 3: Requirement of clearance from Committee on Disputes for filing appeal by public sector undertakings
The Tribunal addressed the argument raised by the Revenue regarding the requirement of clearance from the Committee on Disputes for public sector undertakings to file appeals. The Tribunal rejected this argument, noting that the objection was not raised at the preliminary stage of the appeals and that the matters had already progressed through various levels, including the High Court. The Tribunal emphasized the exemption notifications related to transmission and distribution of electricity, ultimately allowing the appeals and setting aside the demand for service tax on such activities.

In conclusion, the Tribunal ruled in favor of the appellants, setting aside the demand for service tax under the category of Erection, Commissioning and Installation Services and emphasizing the applicability of exemption notifications related to the transmission and distribution of electricity. The Tribunal also dismissed the argument regarding the requirement of clearance from the Committee on Disputes for public sector undertakings to file appeals.

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