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TMI Blog2025 (1) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... Installation services of boiler, ESP etc. The Appellant was registered as service tax assessee during pre-GST era and was paying service tax on the services rendered by him. On the basis of information received from Income Tax Department under third party information policy, it was found that total consideration received by the Appellant, during 2014-15, was Rs.57,68,440/- but the Appellant had not paid service tax during the said period. The Department, therefore, issued Show Cause Notice SCN for demand of service tax on the aforesaid amount treating the said amount as value of taxable services rendered during 2014-15. The demand was raised along with interest and penalty. 3. The SCN was adjudicated by the learned Assistant Commissioner, CGST, Div-Bijnore and an ex-parte order was passed vide Order-in-Original No.38/ST/AC/Bijnore/2021 dated 25.3.2022 confirming thereby demand of service tax along with interest and penalty. The Appellant filed an appeal before the learned Commissioner (Appeals), CGST, Meerut against the impugned Order-in-Original and contended that the whole value declared in Income Tax return during 2014-15 was considered as taxable value without any investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.30/12-ST dated 30.06.2012. She further submitted that service tax liability arising against the said invoice was discharged along with interest amounting to Rs.2,00,000/- vide Challan No.22394 dated 30.03.2015 before issuance of the SCN. She also submitted that there was no short payment of service tax during 2014-15 by the Appellant. 6. Ld. Advocate contested imposition of penalty on the Appellant on the ground that there was no evasion of service tax, hence no penalty under Section 78 and Section 77(2) of the Finance Act, 1994 was imposable. As regards, demand of late fee for filing ST-3 return for the period from Oct, 2014 to Mar, 2015 belatedly, she submitted that as there was no tax liability during that period, non-filing or late filing of return would not attract any late fee in view of Board"s Circular No.97/08/07-ST dated 23.08.2007 which clarified the requirement of filing returns when service tax liability is nil. 7. Ld. Authorized Representative argued the case of the Department and reiterated arguments already spelt out in the impugned Order-in-Appeal. He contended that the Appellant rendered taxable services on which service tax was required to be paid on the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that during the aforesaid period, the Appellant raised invoices to above persons only for sale of material as per the details provided hereunder : - Invoice/Bill No. &date Name of recipient Sale or Service as shown invoice Work Order & date Amount charged in Rs. 15/11.10.14 Green Solutions Kolkata Supply of Iron ISA & plate etc tax included 24R/G-ESP001/14-15 dt.16.08.14 207264/- 17/11.11.14 Green Solutions Kolkata Supply of Iron &Steel ISMC-Channel &Angle, Tax incl 24R/G-ESP001/14-15 dt.16.08.14 115292/- 19/18.11.14 Chema Boilers Ltd, Mohali Supply of Iron & steel M.S.Bar, Railing Pipe & Flat [tax included] CBL/1066/14 dated 08.03.14 1373582/- 21/18.11.14 Chema Boilers Ltd, Mohali Supply of MS Flat etc. tax incl CBL/1066/14 dated 08.03.14 449983/- 22/18.11.14 Chema Boilers Ltd, Mohali Supply of Tee etc tax incl CBL/1066/14 dated 08.03.14 621529/- 25/14.01.15 Green Solutions Kolkata Supply of chequered plate etc. tax incl 24R/G-ESP001/14-15 dt.16.08.14 243018/- 27/03.03.15 Green Solutions Kolkata Supply of Iron & Steel ISMC etc 24R/G-ESP001/14-15 dt.16.08.14 109986/- 29/19.03.15 Chema Boilers Ltd, Mohali Supply of Steel etc. tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Rule 2A of the Service Tax (Determination of Value) Rules, 2006 no service tax was chargeable on the value of goods sold during execution of work contract. Ld. Commissioner (Appeals) has erred to confirm the demand of service tax on the value of goods also. Section 67 of the Finance Act, 1994 provided to charge service tax on the value of service only. Rule 2A of the Service Tax (Determination of Value) Rules, 2006 provided that value of service in works contract would be less by the value of goods supplied. Thus, no service tax was chargeable on value of goods amounting to Rs.33,00,650/-. It was observed by the Ld. Commissioner (Appeals) that no sale tax was paid on the supply of goods. Hence, the value of goods was taken as value of service. A reading of definition of works contract as provided under Section 65B(54) of the Finance Act, 1994 reveals that actual payment of VAT or sale tax is not essential condition for qualifying works contract services. Only condition is "leviable". There is no dispute regarding sale of goods in the present case. Hence, confirmation of service tax on sale of goods is not sustainable and liable to be quashed. In support of contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual firm. It reads as under:- "In exercise of the powers conferred by sub-section (2) of section 68 of the Finance Act, 1994 (32 of 1994), and in supersession of (i) notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 15/2012-Service Tax, dated the 17th March, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i),vide number G.S.R 213(E), dated the 17th March, 2012, and (ii) notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 36/2004-Service Tax, dated the 31st December, 2004, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 849 (E), dated the 31st December, 2004, except as respects things done or omitted to be done before such supersession, the Central Government hereby notifies the following taxable services and the extent of service tax payable thereon by the person liable to pay service tax for the purposes of the said sub-section, namely:- I. The taxable services,- (A) (i) ... , and (2) (i) to(iv)------; (v) provided or agreed to be provided by way of renting of a motor vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturns when service tax liability is nil. It provides as under:- "6. Service tax return 6.1 The service tax return is required to be filed under Section 70 of the Act read with rule 7 of the Rules, by "any person liable to pay the service tax". This return is required to be filed on a half yearly basis, in Form ST-3. For the periods from April to September and October to March, it must be filed by the 25th October and the 25th April respectively. Further, 'Input Service Distributor' is also required to file this return. Persons who are not liable to pay service tax (because of an exemption including turnover based exemption), are not required to file ST-3 return." 20. In view of the above clarification, filing of return is not required if service tax liability is NIL. Hence, imposition of penalty for not filing returns by the Appellant who was not providing taxable service is unjustified. In this context, reliance is also placed on the decision of the Tribunal in the case of Suchak Marketing Pvt. Ltd. [2013-TIOL-963-CESTAT-KOL] where it has been held that no penalty is imposable for non-filing of NIL return. The same view has again been confirmed in the case of Amrap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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