9911796707
TMI Blog2025 (1) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent assessee is alleged to have rendered site preparation services to either to M/s PGCIL or to MCD or any other of its clients including M/s VSK Infrastructure. Thus, this ground of appeal raised by the department is beyond show cause notice hence cannot be dealt with at this stage of appeal. In the present case, respondent has provided services to M/s PGCIL a public sector undertaking which admittedly is engaged in setting up of transmission lines for transmission of electricity and the respondent has provided the infrastructure for the same. Any service provided in relation to transmission of electricity stands exempted from whole of the service tax liability in terms of Notification No. 11/2010-ST dated 27.02.2010. This notification has been relied upon by the original adjudicating authority while dropping the demand vis- -vis the demand of service tax vis- -vis projects executed for M/s PGCIL. There is no evidence produced by the department to prove that the service provided by appellant is not for electricity transmission infrastructure. Hence, there are no infirmity in the order to that extent. Levy of service tax - hire charges on account of giving DG sets, motor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Hon ble Dr. Rachna Gupta, Member (Judicial) And Hon ble Ms. Hemambika R. Priya, Member (Technical) For the Appellant: Shri Anand Narayan, Authorized Representative For the Respondent : Shri Kamal Gupta, Chartered Accountant ORDER Rachna Gupta : The present appeal has been filed by the department pursuant to review order No. 11/ST/2017-18 dated 05.12.2017. The facts relevant for the present adjudication, succinctly are as follows that: 2. The respondent was registered for providing the construction services for constructing commercial/industrial buildings or civil structures, for providing works contract services, supply of tangible goods services etc. CERA conducted the audit of M/s VSK Infrastructure Private Limited for the period 2010-2011 to 2013- 2014 and it got revealed that M/s VSK Infrastructure had received various services through contractors/sub-contractors service providers. Later, did not charged service tax on the bills/invoices against those services provided. M/s Navnirman Constructions Company, being one of the such contractor was observed to have charged Rs. 68 lakhs during the disputed period from M/s VSK Infrastructure, without charging any service tax. 3. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice No. 23/2015-16 dated 10.05.2016 along with the interest and the penalties as mentioned therein. The said order was got reviewed by the Committee of Commissioners vide the aforementioned review order dated 05.12.2017. The present appeal has been filed pursuant to the directions of the said review order. 6. We have heard Shri Anand Narayan, learned Authorised Representative for appellant/department and Shri Kamal Gupta, learned Chartered Account for the respondent. 7. Learned departmental Representative for the appellant department has submitted that the adjudicating authority erred in dropping the demand in respect of service provided by the noticee to M/s PGCIL and M/s VSK Infrastructure Private Limited, before 01.07.2012 i.e. before introduction of negative list under Works Contract service which otherwise were related to site preparation activities at various sites for the period from 2010-11 to 2011-12 as was raised in show cause notice dated 15.10.2015. Also erred in consequently not imposing commensurate penalty under Section 78 of the Act. The adjudicating authority erred in dropping the demand in respect of Hire charges income shown in balance sheet amounting to Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported as 2016 (334) ELT 630 (Guj). It is further submitted that the respondent is not denied to have rendered works contract services to M/s PGCIL which is a government authority still the show cause notice alleged it to be taxable being in the category of commercial or industrial construction services. The adjudicating authority below has rightly considered the admitted fact and thus there is no infirmity in dropping of the demand qua services provided to M/s PGCIL. 10. Learned counsel has relied upon para 13.2 of Circular No. 80/10/2004-ST dated 17.09.2004 which clarified that leviability of service tax would depend primarily upon whether the building is used or to be used for commerce or industry. The appellant department has otherwise failed to produce any evidence to prove that the services provided by the respondent are primarily for commerce or industry. M/s PGCIL is otherwise engaged in setting transmission for electricity and the respondent has provided services of site preparation for setting up of transmission tower/sub-station i.e. for setting up of the transmission infrastructure for transmission of electricity. Notification No. 11/2010-ST dated 27.02.2010 exempts th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y transmission lines but is actually a site preparation services. We observe that in none of the show cause notices the respondent assessee is alleged to have rendered site preparation services to either to M/s PGCIL or to MCD or any other of its clients including M/s VSK Infrastructure. Thus we hold that this ground of appeal raised by the department is beyond show cause notice hence cannot be dealt with at this stage of appeal. We are drawing our support from the decision relied upon by the assessee respondent of Hon ble Gujarat High Court in the case of Reliance Ports and Terminal Ltd. (supra). 13. Further, from the departmental Circular No. 80/10/2004 dated 17.09.2004 as brought to notice by the respondent, it is clear that the leviability of the service tax would depend primarily upon whether the building is used or to used for commerce or industry. In the present case, respondent has provided services to M/s PGCIL a public sector undertaking which admittedly is engaged in setting up of transmission lines for transmission of electricity and the respondent has provided the infrastructure for the same. Any service provided in relation to transmission of electricity stands exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink whether or not intoxicating, where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made 16. Giving goods on Hire with effective control and possession thereof thus stands ousted from the scope of service tax leviability. Since there is no evidence produced by the department on record showing that right to possession and effective control of the equipments given on hire was retained by the respondent assessee, we do not find any infirmity in the order under challenge whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 Entry No. 12(a) which exempts the activity in relation to construction provided to the Government or governmental authorities from service tax levy is not applicable to the respondent assessee. Said entry 12(a) reads as follows: the civil structure or any other original work meant predominantly for use other than for commercial industry or any other business or provision shall remain exempted . 19. As already discussed above, the MCD parkings are for generating Revenue hence construction thereof is the construction for a building meant for commerce. Resultantly, irrespective the MCD is a governmental authority meant to carry out the functions entrusted in Article 243(w) of Constitution of India but the parking being meant as a commercial project of MCD. Above all the respondent has not provided the said service to MCD but to the main contractor. M/s VSK Infrastructure which is not Governmental authority hence we hold that the original adjudicating authority has wrongly relied upon the said notification while dropping the demand for the construction services being provided by the respondent to M/s VSK Infrastructure Ltd,/MCD. The impugned order in original is, therefore, set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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