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TMI Blog2024 (6) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant because the sidings constructed by the Railways for the Appellant was for private use and the same was not used for public carriage of passenger or goods - it is observed that the term railways has not been defined under the Finance Act, 1994. Accordingly, no distinction has been made out between public and private railways in the said Act. The Department cannot fall back on the definition of railways in another statute for the purpose of creating an artificial distinction between the two. The issue with respect to availability of the benefit of exemption on services of construction of railway siding is no more res-integra in view of the judgements rendered by the Tribunals in M/S. TRIVENI ENGICONS PRIVATE LIMITED VERSUS COMMISSIONER OF C.G.S.T. AND CENTRAL EXCISE, JAMSHEDPUR [ 2024 (3) TMI 917 - CESTAT KOLKATA] where it was held that The issue has already been settled by this Tribunal and it has been categorically held that there is no distinction between public railways and private railways. In these circumstances, following the decision of this Tribunal in the case of M/S HARI CONSTRUCTION ASSOCIATES PRIVATE LIMITED VERSUS COMMISSIONER OF CGST EXCISE, PATNA II [ 2023 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the department in view of the Audit conducted. Accordingly, the intention to evade payment of service tax does not exist in this case. Thus, the demand confirmed on this count is not sustainable. Input Service Credit availed on the basis of ineligible documents - HELD THAT:- The appellant has obtained the STTG certificates as required under the said notification and submitted the same before the Ld. Adjudicating Authority during the course of personal hearing - the STTG Certificates were in the prescribed format as contained in the aforesaid Notification. Also the said certificates contain all the particulars available in the Railway receipts, as required to avail the credit. Accordingly, the STTG certificates are valid documents to avail the credit and hence the credit availed cannot be denied. Appeal disposed off. - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) Shri Arvind Baheti, Chartered Accountant for the Appellant Shri S. S. Chattopadhyay, Authorized Representative for the Respondent ORDER Cement Corporation of India Limited (hereinafter referred to as the ( Appellant ) is a Central Public Sector Enterprise engaged in the manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] - Affirmed in by the Hon ble Supreme Court in (2023) 8 Centax 166 (S.C.). The same view has been taken by the Tribunal, Kolkata in the case of Shri Mahendra Kumar Anchalia Vs. Commissioner of CGST CX, Kolkata [2023 (9) TMI 1377]. Accordingly, the appellant contended that the demand confirmed in the impugned order on this count is not sustainable. 3.2. Regarding the demand of service tax of Rs.13,45,733/- on the royalty amount paid to the State Government on natural resource (limestone) extraction, on reverse charge basis, the Appellant submits that the royalty payments made during the Financial Year 2016-17 was in lieu of mining agreements that were executed prior to 01 April 2016. Prior to 01 April 2016, only support services provided by government or a local authority was taxable in terms of Section 66D of the Finance Act, 1994. Support services was defined under the Finance Act, 1994 as: support services means infrastructural, operational, administrative, logistic, marketing or any other support of any kind comprising functions that entities carry out in ordinary course of operations themselves but may obtain as services by outsourcing from others for any reason whatsoever and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achh Bharat Cess (SBC) and Krishi Kalyan Cess (KKC) totally amounting to Rs. 53,803/-, the appellant submits that the demand pertains to the period November 2015 to December 2015 and June 2016 to August 2016 respectively. However, the impugned notice was issued only on 02 June 2020. The fact of nonpayment of the cesses was within the knowledge of the department pursuant to the Audit conducted. When the relevant fact was already in the knowledge of the Department, extended period of limitation cannot be invoked in order to demand the cesses. Therefore, the demand confirmed by invoking extended period of limitation is not sustainable. 3.6. Regarding denial of input tax credit amounting to Rs. 9,00,380/- on the ground of ineligible documents, the appellant submits that the Cenvat Credit was originally taken based on the railway receipts given by the railways. In terms of Notification No. 26/2014 (CE) dated 27 August 2014, the Appellant was required to obtain STTG certificate to avail the Cenvat Credit. They have obtained the STTG certificates and submitted the same before the Ld. Adjudicating Authority during the course of personal hearing. However, the Ld. Adjudicating Authority has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T and Central Excise [2023 (9) TMI 454 (Tri. Kol.)]. 6.5. In support of this view, we also rely upon the decision of the Tribunal, Mumbai in the case of Konkan Railway Corporation Limited Vs. Commissioner of CGST Central Excise[(2023) 8 Centax 161] - Affirmed in by the Hon ble Supreme Court in (2023) 8 Centax 166 (S.C.) . Relevant extracts of the said judgement is reproduced hereunder: 9. It is, thus, clear that the proposition of strict construction of intent of exemption notification must also go hand in hand with strict construction of every word/phrase therein. The exemption from tax is available to 'railways', excluding mono rail or metro, by notification no. 25/2012-ST dated 20th June 2012 after 1st July 2012 and, as conceded by the adjudicating authority, there being no definition of 'railway', either therein or in Finance Act, 1994, the distinction between railway for private purpose and railway for public service cannot be artificially contrived to suit tax administration; neither can the definition in another statute be drawn upon for the purported purpose of illumination. The Railways Act, 1989 was enacted to authorize Government of India to operate the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 2016, service tax liability cannot be fastened upon the Appellant even if the consideration for the same is paid after the introduction of the levy with effect from the said date. Accordingly, we hold that the demand of service tax confirmed in the impugned order is not sustainable. 8. Regarding the demand of service tax of 1,46,250/- under works contract service, we observe that the appellant worked as a 'sub-contractor' contractor for the main contractor M/s. R.S. Engineering. The appellant submits that the main contractor paid service tax on the full value and hence they are not liable to pay service tax as a 'sub-contractor' again. We observe that this issue has been clarified by Board vide Circular dated 23.08.2007, wherein it has been clarified that the 'sub-contractor' is liable to pay service tax even if the main contractor pays service tax on the full value. In the present case, for the works contract service rendered, the appellant was required to pay service tax on reverse charge basis at the rate of 50 percent. Accordingly, we hold that the appellant is liable to pay service tax of 1,46,250/-, along with interest as demanded in the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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