TMI Blog2015 (1) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... ace for building cemented structure for powerhouse and tunnel (tailpool), which is an essential part of the Hydro-electric dam, has to be treated as in course of construction of dam, and would be eligible for exemption under Notification No. 17/2005-S.T. So far as the service of site preparation provided to WBHIDC is concerned, there is no explanation from the appellant as to why the value of this service was not declared in the S.T.-3 Returns and why the Service Tax was not paid. The non-payment of Service Tax on the service provided to WBHIDC was detected only during scrutiny by the Department in course of audit conducted during June, 2010. Therefore, we are of the prima facie view that the appellant have suppressed the relevant facts from the department and hence, extended period would be invokable and the show cause notice dated 14-9-2011 would not be hit by the ratio of the Apex Court’s judgment in the case of Nizam Sugar Mills Ltd. (2006 (4) TMI 127 - SUPREME COURT OF INDIA) as the show cause notice for the period 1-4-2005 to 31-3-2012 had to be issued separately in September, 2011, as the information for this period was not provided by the appellant earlier. As regards th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation provided to M/s. L T Ltd. are not in the course of construction of dam but are in connection with the construction of Hydro-electric Generation Station, the same would not be exempt from Service Tax under Notification No. 17/2005-S.T., dated 17-6-2005. It is on this basis that four show cause notices dated 30-9-2010 for demand of Service Tax for the period from 1-4-2007 to 31-3-2009; dated 14-9-2011 for demand of Service Tax for the period from 1-4-2005 to 31-3-2007; dated 11-10-2011 for demand of Service Tax for the period from 1-4-2009 to 31-3-2011 and dated 8-10-2012 for demand of Service Tax for the period from 1-4-2011 to 31-3-2013 were issued under proviso to Section 73(1) of the Finance Act, 1994. These show cause notices, besides demand of Service Tax, also demanded interest on the same under Section 75 and sought imposition of penalty on the Appellant under Sections 76, 77 78. The longer limitation period under proviso to Section 73(1) has been invoked on the basis of the allegation that the appellant had suppressed the relevant facts in respect of the services provided to M/s. L T Ltd. and WBHIDC and the value of these services was not reflected in the ST-3 Ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in sub-section (1) of Section 65(105)(zzza) of Finance Act, 1994 provided to any person by another person in the course of construction of roads, airports, railways, transport terminals, bridges, tunnels, dams, ports from the whole of the Service Tax leviable thereon, that the department s contention that the job of open excavation of surface power house and tailpool is not in course of construction of dam but is the job in course of execution of a Hydro-electric power project is not correct, that the Commissioner has grossly erred in denying the exemption under notification No. 17/2005-S.T. on the ground that the activity undertaken by the appellant in respect of the project of M/s. L T Ltd. is not in course of construction of dam, but is in the process of construction of dam, that this finding of the Commissioner is absolutely incorrect; that the services provided to WBHIDC, as is clear from the work order placed by the service recipient, involve filling a low lying area with earth to make the same suitable for housing projects and the requisite quantity of earth was to be procured from places not more than 8 kms from the work site, preferably from Bheries (fish ponds), that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order. With regard to Service Tax demand on the service of open excavation of surface power house and tail pool provided to M/s. L T Ltd. he pleaded that this excavation activity is not in course of construction of dam but in course of construction of Hydro-electric Power Plant and hence, this activity of the appellant is not covered by exemption Notification No. 17/2005-S.T., as this exemption notification covers only the services of site formation and clearance, excavation, earthmoving and demolition, provided in the course of construction of dams, tunnels, roads, ports, railways, transport terminals, bridges, etc., that as regards the service of earth filling to make the site suitable for construction of housing complexes, provided to WBHIDC, though the appellants contract with WBHIDC provides that the requisite quantity of earth required for raising the level of the land for housing projects is to be arranged from the bheries , there is no evidence to show that the earth was really brought from bheries and therefore the appellant s plea that the bulk of the amount charged for this service is for dredging of the bheries (fish ponds) is not acceptable. He pleaded tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole of the Service Tax leviable thereon, the service of site formation and clearance, excavation, earthmoving and demolition and such other similar activities provided to any person by any other person in course of construction of roads, airports, railways, transporter terminals, bridges, tunnels, dams, roads and ports. The excavation work carried out by the appellant is in respect of the Hydro-electric Power Generation Plant, which is part of the Hydro-electric dam. We are, therefore, of the prima facie view that this excavation job, though done for excavating the earth to create ample space for building cemented structure for powerhouse and tunnel (tailpool), which is an essential part of the Hydro-electric dam, has to be treated as in course of construction of dam, and would be eligible for exemption under Notification No. 17/2005-S.T. 7. The service provided to WBHIDC is the site preparation for housing projects of West Bengal Government by filling up low lying lands with earth, which in terms of the contract was to be preferably brought from bheries (fish ponds). Since the nature of this work is the site preparation by filling up low lying lands with earth, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed the relevant facts from the department and hence, extended period would be invokable and the show cause notice dated 14-9-2011 would not be hit by the ratio of the Apex Court s judgment in the case of Nizam Sugar Mills Ltd. (supra) as the show cause notice for the period 1-4-2005 to 31-3-2012 had to be issued separately in September, 2011, as the information for this period was not provided by the appellant earlier. As regards the show cause notice dated 11-10-2011 and 8-10-2012 in respect of site preparation services provided to WBHIDC, the same are within time. Thus even if the service provided by the appellant to M/s. L T Ltd. in respect of their Hydro-electric Dam Project are held as exempt from Service Tax under Notification No. 17/2005, still there would be Service Tax liability to the tune of about ₹ 3 crores in respect of service of site preparation provided to WBHIDC and hence, while granting waiver from the requirement of pre-deposit, Revenue s interests have to be safeguarded to this extent. Accordingly, we direct the appellant to deposit an amount of ₹ 3 crores (Rupees three crores only) within a period of 8 weeks from the date of this order. On payme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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