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2023 (8) TMI 1143 - AT - Service TaxCENVAT Credit - classification of input service - raising bills on the occupant towards the realization of electricity consumption charges - HELD THAT:- The submission of Learned Counsel for the respondent cannot be accepted that raising bills on the occupant with service tax component against realization of electricity charges are valid under the Service Tax Laws for the reason that in SRIJAN REALTY (P) LTD. VERSUS COMMISSIONER OF SERVICE TAX, SERVICE TAX COMMISSIONERATE-II KOLKATA AND ORS. [2019 (3) TMI 821 - CALCUTTA HIGH COURT] it was categorically held that electricity was defined as ‘goods’ and thus capable of being traded for which it cannot be covered under the category of service tax nor appellant had any licence to supply electricity under the Electricity Act, 2003, but while such an order was passed treating the activity as the appellant therein had converted high tension electricity supply to low tension electricity supply for the purpose of supplying domestically consumable electric power to the occupant against which it had raised the bill, that was being treated as service and accordingly appellant’s plea therein was allowed - This case stands completely on a different footing and this can only be treated as an erroneous payment of service tax since no extra amount was collected towards its service component other than the electricity consumption dues. However, the classification or legality of such payment of tax could have been done at the owner’s end but it can never be a ground for denial for CENVAT credit at receiver’s end, since payment of service tax was accepted by the Appellant. The appeal is dismissed and the order passed by the Commissioner of Central Tax (Appeals-I), Pune is hereby confirmed.
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