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TMI Blog2024 (11) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... extended provisions of limitation cannot be extended. Since, in the instant case, nothing is on record to prove the same, we are not inclined to confirm the demand beyond the normal period. Services rendered to the SEZ unit - the only objection taken by the Revenue is the Form A-2 which includes the specified services duly authorized is mentioned as works contract services but the specified services to be received by the SEZ unit are Architect Services - HELD THAT:- In the instant case, admittedly, the services were rendered to the SEZ unit by the appellant, the only objection raised was that the services rendered was Works Contract Services while it is mentioned in the form as Architect services . The fact that services were rendered to the SEZ unit is not disputed and both the services are eligible for the benefit of exemption as per the letter dated 02.01.2018 issued by the Department of Commerce (SEZ Section), therefore, we do not find any reason to deny the exemption. Hence, the impugned order to this extent is set aside. The demand of Service Tax is confirmed for the normal period along with interest with regard to the works contract services undertaken by the appellant in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rule 2A(ii)(B) of Service Tax (Determination of Value) Rules, 2006 would cover the following works in relation to immovable property: a. Maintenance of immovable property. b. Repair of immovable property. c. Completion and finishing services such as glazing or plastering or floor and wall tiling or installation of electrical fittings of immovable property. The appellant, in the instant case, undertakes activities in relation to new structure/building and it does not relate to maintenance of immovable property or repair of immovable property. With regard to completion and finishing services, it is submitted that this will apply only if the same is undertaken under a separate contract to provide merely completion and finishing services, but the services provided by the Appellant are bundled with other services and provided under a single/indivisible contract and hence, cannot be said to be completion and finishing services and provisions applicable thereto, would not be applicable to the activities undertaken by the Appellant. The activities undertaken by them are civil work, electrical works, HVAC works, data and networking works followed by interior works are undertaken under a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alore and the decision in the case of M/s. Parul Associated Interiors Pvt Ltd. Versus Commissioner of Service Tax, Bangalore: 2014 (1) TMI 669 CESTAT Bangalore. 3.3 The learned Chartered Accountant with regard to SEZ clearances submitted that Notification No.12/2013-ST dated 01.07.2013 provides for exemption from payment of whole service tax when such services are used for authorised operations within the SEZ unit. The exemption has been denied stating that the services provided by the Appellant is Works Contract Service whereas Form A2 mentions Architect Service . Referring to the Circular issued by Government of India, Ministry of Commerce, SEZ Division (New Delhi), Circular No D.12/19/2013-SEZ dated 19.11.2013 wherein it is stated that services in the nature of Architect services (at Sl.No.2) and Works Contract Services (at Sl.No.55) of the Annexure where both qualifies and are permitted by all Unit Approval Committees as default authorised services. Hence, both the services qualify as authorised services for SEZ operations and will be eligible for exemption. Further, it is submitted that the impugned order does not dispute the fact that the appellant had provided the works cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed operations, in other words, it is Revenue Neutrality , as held in the case of Anglo French Textiles vs. Commissioner of C. Ex., Puducherry - 2018 (360) E.L.T. 1016 (Tri. - Chennai), affirmed by Apex Court in Commissioner v. Anglo French Textiles - 2018 (360) E.L.T. A301 (S.C.) and Mahindra Mahindra Ltd. Versus Commr. Of C. Ex., Mumbai - 2019 (368) E.L.T. 105 (Tri. - Mumbai), which is also affirmed by Apex Court in Commissioner vs. Mahindra Mahindra Ltd. - 2019 (368) E.L.T. A41 (S.C.); 3.7 As far as non-submission of authorization in Form A2 and declaration of details thereto in Form ST-3 return is concerned, the appellant submits that as part of hearing for pre-show cause notice consultation, copy of Form A2 was duly submitted by the Appellant and the same was also taken on record. Show-cause notice was issued with allegation that authorization in Form A2 is not submitted and declaration thereto is not made in Form ST-3 and hence, liable to pay Service Tax on services rendered to SEZ unit. Show-cause notice issued never alleged that description of services is different in Form A2 from that of services actually rendered i.e., Architect Services mentioned in Form A2, whereas serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced on the following decisions. Uniflex Cables Ltd. -2011 (271) E.L.T. 161 (S.C.) Commissioner v. Nestle India Ltd. - 2009 (237) E.L.T. A102 (S.C.) Maruthi Suzuki Ltd vs Commissioner 2018(010) GSTL 0J43 S.C 3.9 With respect to suppression, the learned Chartered Accountant submitted that although the appellant did not declare the gross value in Form ST-3, whereas they had declared only the taxable value but have rightly declared the fact that abatement has been claimed in terms of Notification No. 24/2012 - ST dated 06.06.2012 and offered to tax under partial reverse charge in terms of Sl. No. 9 of Notification 30/2012 - ST dated 20.06.2012, which has been disclosed in their returns furnished in Form ST-3 for service provided to Domestic Tariff Area (DTA) customers and therefore, the question of invoking extended period of limitation does not arise. 4. The learned Authorized Representative reiterating the observations of the Commissioner submitted that the activities undertaken by the appellant squarely falls under the definition of Completion and Finishing Services as defined under the Commercial or Industrial Construction vide (Section 65(25b) of the Finance Act, 1994). It is subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Notification No.11/2014 dated 11.07.2014, which is reproduced below: Notification No. 11/2014-S.T., dated 11-7-2014 In exercise of the powers conferred by clause (aa) of sub-section (2) of section 94 of the Finance Act, 1994 (32 of 1994) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) number 11/2012-Service Tax, dated the 17th March, 2012, published in the Gazette of India, Extraordinary, vide number G.S.R. 209(E), dated the 17th March, 2012, the Central Government, hereby makes the following rules further to amend the Service Tax (Determination of Value) Rules, 2006, namely :- 1. (1) These rules may be called the Service Tax (Determination of Value) Second Amendment Rules, 2012. (2) They shall come into force from the 1st day of July, 2012. 2. In the Service Tax (Determination of Value) Rules, 2006 (hereinafter referred to as the said rules), for rule 2A, the following rule shall be substituted, namely :- 2A. Determination of value of service portion in the execution of a works contract. - Subject to the provisions of section 67, the value of service portion in the execution of a works contract, refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpletion and finishing services such as glazing or plastering or floor and wall tiling or installation of electrical fittings of immovable property, service tax shall be payable on seventy per cent. of the total amount charged for the works contract. Explanation 1 . For the purposes of this rule,- (a) original works means- (i) all new constructions; (ii) all types of additions and alterations to abandoned or damaged structures on land that are required to make them workable; (iii) erection, commissioning or installation of plant, machinery or equipment or structures, whether pre-fabricated or otherwise; 5.2 In the impugned order, the learned Commissioner at Para 13.11 observes as follows: I have examined the copies of sample invoices raised on their customers .. I find that the activity undertaken by the noticee in the said documents as Installation and erection , civil works , electrical works , HVAC works , interior works and data networking . He further states that the appellant in their reply had submitted detailed description of the work done by them which is plastering, water proofing, laying of water pipes, laying of soil pipes, installation of sanitary fixtures, electrical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of works contract . In the case of M/s. Parul Associated Interiors Pvt Ltd. (supra), the question was with regard to abatement as per Notification No.15/2004 hence, irrelevant. In the case of M/s. Sherbrooke Aluminium Products (supra), the services of construction of doors, windows partitions etc., of commercial buildings was considered as completion and finishing services by the Tribunal and therefore, the similar activities which are undertaken by the appellant as discussed above clearly fall under the category of completion and finishing services . 5.4. With regard to suppression, the learned Commissioner in the impugned order has held that the appellant had failed to pay the service tax liable to be paid in respect of works contract service in terms of Rule 2A(ii)(A)(ii) of the Service Tax (Determination of Value) Rules, 2006, thereby resulting in non-payment of service tax . The learned Commissioner also observed that under the self-assessment regime, the appellant being aware of the legal provisions, the onus is on them to declare and pay appropriate service tax and relying on the decision of the Supreme Court in the case of Union of India Vs. Dharmendra Textile P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason that the charge of, (a) fraud; or (b) collusion; or (c) wilful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, has not been established against the person chargeable with the service tax, to whom the notice was issued, the Central Excise Officer shall determine the service tax payable by such person for the period of thirty months, as if the notice was issued for the offences for which limitation of thirty months applies under sub-section (1). 5.5 The fact that the appellant has been regularly filing the ST-3 returns is not being disputed. The only dispute is the claim of abatement as per the Notification No.11/2014-S.T., dated 11-7-2014 during the relevant period. To invoke the proviso to Section 73 of the Finance Act, 1994, one of the ingredients such as fraud, collusion, wilful misstatement, suppression of facts or contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, has to be established. In the instant case, there is nothing on record to establish that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the above matter was placed before 80th BoA meeting held on 17th November, 2017. The BoA, after deliberations, approved the reiteration of the default authorized operations as approved, earlier. Encl : Annexure - List of 66 services. Yours faithfully, (Aditya Naryan) Under Secretary to the Government of India Tel: 23062496 E-mail: [email protected] Annexure Default list of Services approved by Department of Commerce Sl. No. List of Approved Services 1. Airport Authority Services 2. Architect Services 49. Technical inspection and certification 54. Transport of goods by Road Services 55. Works contract services 6.1 The Hon ble High Court in the case of GMR Aerospace Engineering Ltd. Versus Union of India 2019 (31) G.S.T.L. 596 (A.P.) while dealing with the exemptions to the SEZ unit observed as follows: 30 . This is for the reason that Section 26(1) of the SEZ Act made the entitlement to certain exemptions subject to provisions of sub-section (2) of Section 26. Section 26(1) did not make the entitlement of a Developer to certain exemptions, subject to the provisions of something else other than the provisions of sub-section (2). Therefore, the 5th respondent cannot read Section 26(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 50, provided there is a state enactment to the said effect. 33 . The word prescribe is used in the present tense in Section 26(2) and in the past tense in Section 7. Both will have the same meaning as assigned to the word under Section 2(w). The moment a set of rules is issued either in respect of matters covered by Section 7 or in respect of matters covered by Section 26(1), there is no scope for invoking any other law for imposing any other condition. 34. The benefit of exemptions granted under the notifications issued under Section 93 of the Finance Act, 1994, are available to any one and not necessarily confined to a unit in a special economic zone. Section 93 of the Finance Act, in that sense is a general power of exemption available in respect of all taxable services. But, Section 26(1) is a special power of exemption under a special enactment dealing with a unit in a special economic zone. Therefore, the notifications issued under Section 93 of the Finance Act, 1994 cannot be pressed into service for finding out whether a unit in a SEZ qualifies for exemption or not. (emphasis supplied) 35 . For driving home her contention that SEZ Act, 2005 and the rules framed thereunder ..... 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