9911796707
TMI Blog2022 (11) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal contractor. In case of some service the appellant has charged and recovered service tax from service recipient, there the appellant has duly discharged the service tax liability. 1.1 As regard non-payment of service tax, a show cause notice dated 08.09.2009 came to be issued raising the demand of service tax amounting to Rs. 1,17,30,336/- along with interest and penalty invoking extended period of limitation of sub-section (1) of section 73 of Finance Act, 1994. The adjudicating authority vide Order-In-Original dated 10.10.2012, confirmed the service tax demand along with interest and penalty. Being aggrieved by the said Order-In-Original, the appellant preferred the present appeal. 02. Shri Rahul Gajera, learned counsel appearing on behalf of the appellant submits that there is no dispute that the service provided by appellant is in relation to power transmission tower in the capacity of sub-contractor. He submits that the services have been exempted by a notification no. 45/2010 which provides that any service rendered in relation to transmission and distribution of electricity are exempted from service tax. The expression "relating to" is very wide in its amplitude and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee from doubt. The C.B.E.C. changed its previous view that service tax is not payable by sub-contractor by Circular No.96/7/2007-S.T. dated 23.08.2007 even after the said circular there were conflicting decisions of the tribunal necessiating reference to larger bench and only recently by its decision in CST V/s. MELANGE DEVELOPERS- 2020 (33) GSTL 116 (Tri.LB) the larger bench has decided the said issue. It is settled law that where the issue has not been free from doubt requiring reference to larger bench, larger period of limitation cannot apply. He prays to allow the appeal by setting aside the impugned order. 03. Shri Kalpesh Shah, learned Superintendent (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. 04. We have carefully considered the submissions made by both the sides and perused the records. We find that as regard the service i.e. renting of JCB under the category of supply of tangible goods, the appellant have collected the service tax and paid the same to the government exchequer therefore, the same is not under dispute on merit. We accordingly, maintain the service tax demand and payment thereof on supply of tangible goods i.e. ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. This issue has been considered in various judgments which are cited/reproduced below:- * Kedar Constructions- 2015 (37) S.T.R. 631 (Tri.-Mumbai) 5. We notice that out of the total demand confirmed of Rs. 2,04,14,368/-, bulk of the demand of Rs. 1,90,47,124/- pertains to Commercial or Industrial Construction service rendered to Maharashtra State Electricity Transmission Co. Ltd., Maharashtra State Electricity Distribution Co. Ltd., Sunil Hi-Tech, Suraj Constructions, V.B. Bhike, etc. for transmission of electricity. Vide Notification 45/2010-S.T., all taxable services rendered "in relation to‟ transmission and distribution of electricity have been exempted from the purview of Service Tax. The expression "relating to‟ is very wide in its amplitude and scope as held by the Hon‟ble Apex Court in Doypack Systems P. Ltd. - 1988 (36) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns do not exempt the activity/service of installation of various equipments at the consumers premises, as this service is different from and in addition to service of distribution of electricity; that equipment installed by the assessee is not in lieu of hire charges; that the infrastructure (established by the assessee) is used to supply electricity to various consumers and the consumers do not have ownership of the transformers. The contention by the assessee that installation of the various equipment, establishing the network is an essential component of his business of distribution of electricity which is carried out in terms of the provisions of the Electricity Act, 2003 was rejected on the ground that all duties required to be delivered by a distribution licensee under provisions of Electricity Act are not exempt from payment of Service Tax. Other contentions were urged on behalf of the assessee has were also rejected by the Adjudicating Authority. 5. On true and fair analysis of the Exemption Notification dated 22-6-2010 and the immunity Notification dated 20-7-2010, the conclusion is compelling that all taxable services provided in relation to distribution of electrical e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to as "the Finance Act‟), on all taxable services relating to transmission and distribution of electricity provided by a person (hereinafter called "the service provider‟) to any other person (hereinafter called "the service receiver‟), and that all such services were liable to service tax under the said Finance Act, which were not being levied according to the said practice during the period up to 26th day of February, 2010 for all taxable services relating to transmission of electricity, and the period up to 21st day of June, 2010 for all taxable services relating to distribution of electricity; Now, therefore, in exercise of the powers conferred by Section 11C of the Central Excise Act, 1944 (1 of 1944), read with Section 83 of the said Finance Act, the Central Government hereby directs that the service tax payable on said taxable services relating to transmission and distribution of electricity provided by the service provider to the service receiver, which was not being levied in accordance with the said practice, shall not be required to be paid in respect of the said taxable services relating to transmission and distribution of electricity during the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distribution company. There is no detail available as to how the service provided by the appellants has to be treated as the one provided prior to transmission and distribution of electricity. Notification No. 45/2010 exempts all the services rendered in relation to transmission and distribution of electricity and there is no distinction made prior to commencement of transmission or distribution subsequently. It is quite clear that in this case services are provided to M/s. APCPDCL which is engaged only in transmission of electricity and therefore services provided by them have to be considered as the one provided for transmission not distribution. Under these circumstances we consider that the appellants clearly are eligible for the benefit of Notification No. 45/2010. In view of the fact that the issue involved has been considered in detail and there is nothing left to look at, it would be appropriate to allow the appeal itself at this stage rather than keeping the matter pending for years before this Tribunal. 3. In view of the above discussion, the impugned order is set aside and the appeal is allowed with consequential relief, if any, to the appellant. The stay application ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
