9911796707
TMI Blog2025 (1) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... ower Intake Package" was awarded to M/s ITD. The scope of work also included such items which were not specifically mentioned in the Contract Documents but which are reasonably implied for the satisfactory completion of the entire scope of work envisaged under this contract unless otherwise specifically excluded from the scope in the letter of acceptance. M/s ITD further entered into another agreement with the appellant for excavation of clay, loading, transportation and unloading at dam site also referred in some documents as sub-contract 'for clay extraction and hauling from Naulakha and Kanaid Clay Borrow'; and supply of manpower for cleaning and caulking work at dam under KOLDAM Project. As per the said agreement, the appellant would excavate and load clay/aggregate material from designated borrows and unload at coffer dam site and then spread the same. Thereafter, with the aid of machinery and labour, clay/aggregate material was compressed layer upon layer for form earthfilled/corefilled dam. Further, the appellant was also granted work order for cleaning and caulking work at dam, spillway, galleries etc. 2.2 The department alleged that the appellant has rendered taxable serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y appreciating the facts and the law; and binding judicial precedents. 4.2 The learned Counsel further submits that no separate values for the impugned services have been mentioned in the show cause notice, Order-in-Original and Order-in-Appeal in respect of the alleged services. 4.3 He further submits that from the work order, it is clear that the service rendered by the appellant is not 'manpower recruitment or supply' rather it is 'cleaning and caulking work at dam, spillway, galleries etc at coffer dam and main dam. 4.4 He further submits that the said services were provided in the course of construction, repair, maintenance etc of the dam which were exempted under Notification No. 17/2005-ST dated 07.06.2005 up to June 2012; the services were related, bundled and undertaken in course of construction, repair, maintenance etc of the same dam i.e. coffer dam at KOLDAM and were exempted by name up to 30.06.2012 vide Notification No. 17/2005-ST dated 07.06.2005. He also submits that for the period with effect from July 2012 onwards, the impugned services were squarely covered under Negative List vide clause 12 (a) and (d) of Notification No. 25/2012-ST dated 20.06.2012. 4.5 He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tream and Downstream Coffer Dam; c) Construction of 163 meters Earth and Rockhill Dam with impervious central clay core; d) Underground drainage and grouting works in the foundation including galleries; e) Construction of Chute Spillways with Flip Bucket; f) Construction of Power intake structure (including removal of overburden and rock excavation in desilting basin; g) Construction of intake and Spillway Control Building, h) Dam instrumentation; and i) Plugging of Diversion Tunnel *The scope of work shall also include all such items which are not specifically mentioned in the Contract Documents but which are reasonably implied for the satisfactory completion of the entire scope of work envisaged under this contract unless otherwise specifically excluded from the scope in the letter of acceptance. 7. Further, we find that M/s ITD entered into an agreement with the appellant and assigned the following work: a) excavation of clay, loading, transportation and unloading at dam site also referred in some documents as sub-contract 'for clay extraction and hauling from Naulakha and Kanaid Clay Borrow'; and b) supply of manpower for cleaning and caulking work at dam u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t) and in supersession of notification number 12/2012- 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. 210 (E), dated the 17th March, 2012, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the following taxable services from the whole of the service tax leviable thereon under section 66B of the said Act, namely:- 1. ----- 2. ----- ------ ----- 12. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of - (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) ------ (c) ------ (d) canal, dam or other irrigation works;" 10. Further, we find that in this case, the services were provided to M/s NTPC which is a governmental authority and were exempted from levy of service tax. M/s NTPC is a public sector undertaking under the ownership of the Ministry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a dam, the Original Authority held that when such dam becomes part of Hydroelectric Power Project, the tax liability will arise. We are not able to appreciate such interpretation. The statutory definition did not define the scope of the term "dam" or its ultimate use. It is common knowledge that in many cases, the dams are for multi-purpose like, irrigation, power generation, flood control, etc. The exclusion clause did not put any condition that the dams for particular purpose only will be excluded from tax liability. We find no justification to give a restrictive meaning to the term "dam" to the effect that the exemption will be available only when it is not part of any bigger project." 17. In Continental Construction Ltd. v. Commissioner of Service Tax (Adj.), New Delhi - 2018 (12) G.S.T.L. 109 (Tri. - Del.), a Division Bench of the Tribunal held as follows : "1. The present cross appeals are both directed against the Order-in-Original No. 16/2013-14, dated 24-12-2013. The assessee is engaged in providing construction services. The dispute in the present case is with reference to certain projects executed by the assessee as follows :- (i) Maneri Bhali Hydro-Electric Projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties are in connection with the construction of the dam and hence excluded from the purview of Commercial or Industrial Construction" 6. With reference to the work executed by the assessee for Himachal Pradesh Electricity Board, such work involves construction of highway tunnel which is extension of existing highway tunnel. Construction of tunnel is specifically excluded from the purview of "Commercial and Industrial Construction and we uphold the finding of the adjudicating authority in this regard to the effect that no service tax is liable for such construction activities. In view of above Revenue appeal is dismissed." 13. Further, we find that invocation of extended period in the present case is also not warranted because the appellant had a bona fide belief that no service tax was attracted on the value of services rendered by them to turnkey projects being a minor sub-contractor in projects declared by Government of India as Mega Development Project of National Importance. The appellant even did not get itself registered due to the said bona fide belief and also did not recover any service tax from the main contractor M/s ITD or from M/s NTPC; and there was no intention ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
