TMI Blog2024 (1) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... plication of mind. The provisions were not only wrong but were non-existent during the relevant period - this question is answered in favour of the assessee and against the Revenue and it is held that the demand confirmed in the non-existent legal provisions cannot be sustained. Exemption under Notification no. 25/2012-ST dated 20.6.2012 (S.No. 12) - HELD THAT:- It is undisputed that the services were rendered to the PWD and to NOIDA. PWD stands for Public Works Department which is a department of the State Government. Therefore, it is Government itself and not a Governmental authority. The notification exempts not only services rendered to governmental authorities but also services rendered to the Governments and Local authorities. PWD, being the Government, the question of it having to fall under the definition of Governmental authority does not arise. As far as NOIDA is concerned, it stands for New Okhla Industrial Development Authority which governs a part of the National Capital Territory of Delhi and is part of the State of Uttar Pradesh. The term local authority is not defined in the notification and hence the commonsensical meaning of the term should be applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 3. Service Tax Appeals numbered 50967/2018 51320/2018 and 51321/2018 are filed by the assessee assailing the confirmation of the demands as, according to it, no service tax was payable at all since the services were rendered to the Public Works Department [PWD] of the Government and to the New Okhla Industrial Development Authority [NOIDA] and hence were fully exempted during the relevant period as per entry 12 of Notification No. 25/2012-ST dated 20.6.2012. According to the assessee, all three Show Cause Notices were also not sustainable for the reason that the demands were made under Sections 65(105)(zzd) (Erection, Commissioning and Installation Service), 65(105)(zzg) (Management, Maintenance and Repair Service) and 65(105)(zzzza) (Works Contract Service) which were not in existence during the relevant period. 4. We have heard Shri A K Batra, learned Chartered Accountant for the assessee and Shri Rajeev Kapoor, learned authorised representative for the Revenue and perused the records. Three fundamental issues need to be examined before going into the other submissions by both sides: a) Can the demands raised in the SCNs under the non-existent charging sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power . However, learned authorised representative assails the Commissioner relying on exemption notification no. 12/2003-ST dated 30.6.2003 which has been rescinded by notification no. 34/2012-ST dated 20.6.2012. 8. We have considered the submissions on this issue. It is undisputed that the charging sections under which the appellant was put to notice did not exist during the relevant period although all services were chargeable to service tax (unless they are in negative list) during the relevant period. In Pradyumna Steel, the Supreme Court held as follows: Leave granted. 2 . An application for rectification was made by the Department to the Tribunal for rectification of its order dated 23-6-1987 deciding the appeal. In the main order, the only relevant part is contained in para 4 thereof, with which alone the other member of the Bench expressed his concurrence. In that part of the order, it was held that the provision mentioned in the show-cause notice being inapplicable, the show cause notice was invalid an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been a different case if the Commissioner had, noting that the SCNs were erroneous, given the appellant sufficient opportunity to defend under the relevant provisions, examined their submissions and confirmed the demand under the provisions relevant to the period. Therefore, this is not a case of mere wrong mention of a provision in the SCN but a confirmation of demand on charging sections which did not exist during the relevant period at all. It is also a case of ascertaining the demand considering exemption notification which also did not exist during the relevant period. Not only were the wrong provisions invoked in the SCN, but the demands were confirmed under them in the impugned order which shows complete non-application of mind. The provisions were not only wrong but were non-existent during the relevant period. We, therefore, answer this question in favour of the assessee and against the Revenue and hold that the demand confirmed in the non-existent legal provisions cannot be sustained. Exemption under Notification no. 25/2012-ST dated 20.6.2012 (S.No. 12) 11. According to the learned consultant for the assessee, notification no. 25/2012-ST dated 20.6.2012 (S.No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices rendered to governmental authorities but also services rendered to the Governments and Local authorities. PWD, being the Government, the question of it having to fall under the definition of Governmental authority does not arise. As far as NOIDA is concerned, it stands for New Okhla Industrial Development Authority which governs a part of the National Capital Territory of Delhi and is part of the State of Uttar Pradesh. It is created, as per the learned consultant, under the UP Industrial Area Development Act, 1976 (Section 3) like other similar authorities in the State. Section 6 of the Act explains the functions of these authorities as follows: Section 6: Functions of the authority (1) The object of the Authority shall be to secure the planned development of the industrial development area. (2) Without prejudice to the generality of the objects of the Authority, the Authority shall perform the following functions : (a) to acquire land in the industrial development area, by agreement or through proceedings under the Land Acquisition Act, 1894 for the purpose of the Act; (b) to prepare a plan for the development of the industrial development area; (c) to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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