Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2022 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (8) TMI 644 - AT - Service TaxLevy of Service Tax - Commercial or Industrial construction services provided to Railways - Appellant have provided the services to Western Railway, which is a part of Ministry of Railway i.e. "Government" - extended period of limitation - HELD THAT:- There is no dispute on the facts on either side that Appellant have provided services to Western Railway, which is a part of the Ministry of Railway i.e. "Government" and that Appellant has not provided services to any person except Railways. It is also noted that after issuance of SCN dated 21-09-2020, Appellant has also participated in the adjudication proceedings conducted and have made submissions along with documents of Income Tax Returns, their work orders issued by Indian Railways and their other financial records including profit & loss accounts etc with a prayer to drop the Service Tax demand in this case, issued unduly invoking extended period for demand. It is settled that Service Tax demand cannot be raised only on the basis of any such assessment made by the Income Tax Authorities. Information or data or documents relied upon loses its evidentiary value in absence of any independent inquiry which was mandatorily required to have been conducted by concerned officers of Central Excise department at Bhavnagar, before issuance of the Show Cause Notice dated 21-09-2020 - In this case, provisions of Section 36A and Section 36B does not appear satisfied as conditions imposed does not appear followed by Central Excise department. Hence, shared data by Income Tax department cannot be used against Appellant without independent inquiry/investigation carried by the Revenue. Therefore, demand of Service Tax confirmed with interest and Penalty by the adjudicating authority also deserves to be set aside on this ground. The provisions of Section 65A of Finance Act 1994 provides for classification of taxable services. It is settled law that activity shall be classified of a service which gives a service essential character, as per section 65A ibid as it is applicable. The activity of maintenance, repairs are distinct and separate taxable services listed under Sr. No. 12 of Notification No. 25/2012-ST. Hence, O-I-O is not in accordance with provisions of Finance Act 1994. Sr. No 12 of Notification 25/2012-ST allows exemption in respect of repair and maintenance of a civil structure. Therefore, services of Appellant were to Railways (Western), for Repairs and Maintenance is eligible for the above exemption. In catena of cases that Tribunal being a final fact finding authority can admit any fresh evidence and also argument. This issue has been considered by the Hon‘ble Supreme Court (Three Judges Bench), in the case of NATIONAL THERMAL POWER COMPANY LIMITED VERSUS COMMISSIONER OF INCOME-TAX [1996 (12) TMI 7 - SUPREME COURT], which is to the effect that the Tribunal has jurisdiction to examine question of law which arises on facts, as found by authorities below, and having bearing on tax liability of assessee, even though said question was neither raised before lower authorities nor in appeal before Tribunal, but sought to be added later as additional ground by separate letter - In DEVANGERE COTTON MILLS LTD. VERSUS COMMISSIONER OF C. EX., BELGAUM [2006 (4) TMI 134 - SUPREME COURT], the Hon’ble Supreme Court has held that Tribunal has got wide power to hear and consider a new ground and decide appeal. There are no necessity to go into further details of the other points raised against Order-in-Original by Appellant like time limitation for demand invoking extended period not sustainable in this case, computing “Cum-Tax-Value” for Service Tax demand, though such points may have substantial force in favour of Appellant, when demand of Service Tax is not sustained on merits in the facts of this case. The impugned order confirming the demand of Service Tax with interest and imposing penalties on appellant is unsustainable and liable to be set aside - Appeal allowed - decided in favor of appellant.
|