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2017 (3) TMI 790 - CESTAT NEW DELHIPSU - the appellant was required to execute various services to BALCO for its captive power plant at its Korba Aluminum Complex, since they did not have facilities for transportation, handling and storage of coal etc - Business Auxiliary Services - cost of transportation - whether the cost of transportation was to be included for purposes of payment of service tax under “Business Auxiliary Service”? - Held that: - the activity of crushing of coal cannot be covered within any of the sub-clauses of BAS until its amendment w.e.f 16.06.2005. After the said amendment, the activity can be brought within the term of “processing” and hence, liable to Service Tax under BAS. Consequently, there can be no demand for Service Tax prior to this date. Transportation of coal - consideration received from BALCO - whether comes under BAS or not? - Held that: - In the definition of BAS, any service provided to a client in relation to the “Business Auxiliary Service” is covered within the definition. If the crushing of coal is considered as the activity covered under BAS, transportation of coal for such purpose would also be included since it is intimately connected with crushing. In any case, the contract for activity includes both. Hence, we find no basis to exclude ₹ 30/- from payment of service tax. Time limitation - The appellant has claimed that the Show Cause Notice is time barred. Since, the same has been issued more than one year from the date in which the appellant intimated the audit party - Held that: - date of knowledge was of no significance - the SCN is not time barred. Penalty - Held that: - The levy of Service Tax under BAS has seen repeated amendments to enlarge the scope of this service. Hence, we consider this to be a fit case to waive the penalties imposed in the impugned order under Section 80 of the Finance Act, 1994 - penalty set aside. The original adjudicating authority is directed to re-quantify the demand w.e.f. 16.06.2005 - appeal allowed in part and part matter on remand.
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