2025 (6) TMI 446 - AT - Service Tax

Non-payment of service tax - jurisdiction of Assistant Commissioner of CGST to issue the SCN and pass orders relating to service tax liability under the repealed Finance Act 1994 - Scope of the definition of State under Article 12 - exemption under N/N. 25/2012-ST dated 20.6.2012. Jurisdiction of Assistant Commissioner of CGST to issue the SCN or to pass an order in respect of service tax - HELD THAT - The challenge of the jurisdiction of the Assistant Commissioner by the learned counsel is an account of the fact that he had not considered the savings clause of the CGST Act. If the learned counsel s submissions are accepted it will result in utter chaos and confusion. For instance if any assessee succeeds in service tax appeal and has to get consequential relief if the CGST officers are held to be not authorised under Service Tax law nobody can grant refund to the assessee because there are no more any service tax officers. This submission of the learned counsel on the question of jurisdiction deserves to be rejected and is rejected. Scope of the definition of State under Article 12 - HELD THAT - It is meant for only Part III (Fundamental Rights) of the Constitution and that too unless the context otherwise requires. This part deals with the fundamental rights and places certain restrictions on what the State cannot do and for this purpose the definition of State shall be as per Article 12. This definition does not apply even to other parts of the Constitution itself for instance Part VI which deals with the States. Nothing in Article 12 suggests that it would apply to all laws and notifications in the country. Learned counsel placed the definition in Article 12 completely out of context. In this appeal the dispute is about the liability of tax. There no is dispute about or interpretation of any fundamental rights. This submission of the learned counsel due to his misunderstanding of the scope of Article 12 needs to be rejected. Exemption under N/N.25/2012-ST S.No. 12 (a) - HELD THAT - The notification exempts services by way of construction of a civil structure or any other original works meant predominantly for use other than for commerce industry or any other business or profession. The three structures viz. the auction platforms and the roofs over the internal roads were constructed in mandis or market places. There cannot be any doubt that these structures are meant for business and commerce. Mandis or market places are meant for business only and nothing else. To suggest that these are not meant for business or commerce is preposterous. Therefore the services received by the appellant are clearly not covered by S.No. 12(a) of Notification no. 25/2012-ST. S.No. 14(d) of the notification - HELD THAT - Market is not a place of storage but a place where goods are sold and bought. Of course when they are to be sold they will be brought to the market and until they are sold they are kept in the market but that does not make the market a place of storage. The auction platform for instance as the name suggests is for auctioning the produce. Simply because the produce is kept on the platform until it is sold the platform does not become a place of storage. Similarly internal roads of mandis are meant for movement of goods and vehicles carrying them. Vehicles may stop on these roads until they are unloaded but that does not make the roads a place of storage. Clearly nothing in S.No. 14(d) of the notification applies to the services received by the appellant. Extended period of limitation - HELD THAT - In this case the appellant had not registered with the service tax. Neither the appellant nor the service provider had declared the services which the appellant had received. Even after the investigation was commenced the appellant had not made any effort to pay the service tax due from it. The appellant was waiting until the service tax officers got the intelligence investigated and knocked at the appellant s door. Nothing in the entire conduct of the appellant shows that it behaved like a responsible government entity with no intent to evade service tax. In this factual matrix the extended period of limitation has been correctly invoked. There are no reason to interfere with the confirmation of demand invoking extended period of limitation under section 73 with appropriate interest under section 75 - Section 77 of the Finance Act provides for penalty for not filing the returns. Admittedly the appellant had neither paid the service tax nor filed the returns. The penalty under section 77 therefore deserves to be upheld. Appeal dismissed.

Summary

The core legal questions considered by the Tribunal in this appeal are:

1. Whether the Assistant Commissioner of CGST had jurisdiction to issue the Show Cause Notice (SCN) and pass orders relating to service tax liability under the repealed Finance Act, 1994.

2. Whether the services provided to the appellant by the service provider qualify for exemption under Notification No. 25/2012-ST dated 20.6.2012, specifically under entries 12(a), 13(a), or 14(d).

3. Whether the appellant, being a government entity or 'State' under Article 12 of the Constitution, is exempt from service tax liability or entitled to special treatment regarding exemption or limitation.

4. Whether the SCN issued to the appellant was barred by limitation and if the extended period of limitation under section 73(2) of the Finance Act, 1994 was correctly invoked.

5. Whether penalties under sections 77 and 78 of the Finance Act, 1994 were rightly imposed on the appellant.

Issue 1: Jurisdiction of the Assistant Commissioner of CGST to adjudicate service tax liability

The relevant legal framework includes the Finance Act, 1994 (under which service tax was levied), and the CGST Act, 2017, which repealed the Finance Act and subsumed service tax into GST. Sections 173 and 174 of the CGST Act provide saving provisions preserving rights, obligations, and proceedings under the repealed laws.

The Court interpreted these provisions to hold that although the Finance Act, 1994 was repealed, actions relating to rights and liabilities accrued before the repeal can be taken by successor officers under the CGST Act. The Assistant Commissioner of CGST is thus empowered to continue proceedings under the service tax law saved by the CGST Act. The appellant's submission that the Assistant Commissioner lacked jurisdiction was rejected as it ignored the saving clauses and would lead to administrative chaos.

The Court emphasized that the CGST officers are successors to service tax officers and must exercise powers to adjudicate pending or ongoing service tax matters. This interpretation aligns with the legislative intent to ensure continuity and avoid procedural vacuum.

Competing arguments that the Assistant Commissioner was not the proper authority were dismissed as untenable.

The conclusion was that the Assistant Commissioner had jurisdiction to issue the SCN and pass orders under the service tax regime despite the repeal of the Finance Act.

Issue 2: Applicability of exemption notifications to the services rendered

The appellant claimed exemption under three heads of Notification No. 25/2012-ST:

• S.No. 12(a): Services to Government/local authority by way of construction of civil structures or original works predominantly for use other than commerce, industry or business.
• S.No. 13(a): Services related to construction of roads or similar infrastructure for use by the general public.
• S.No. 14(d): Services by way of construction of post-harvest storage infrastructure for agricultural produce including cold storage.

The Court analyzed the nature of the works: construction of auction platforms covered with CGI sheets and roofing over internal roads in mandis (agricultural markets).

Regarding S.No. 12(a), the Court found that mandis are inherently commercial places meant for business and commerce. The structures constructed were thus predominantly for commercial use and did not qualify as exempted civil structures used for non-commercial purposes.

For S.No. 13(a), the Court held that the roofing over internal roads is not construction of roads for use by the general public but facilities within a commercial market for buyers and sellers. Hence, exemption for roads used by the general public did not apply.

Concerning S.No. 14(d), the appellant argued that auction platforms and roofing served as post-harvest storage infrastructure. The Court rejected this, reasoning that a market is a place of sale and auction, not storage. Temporary placement of goods for sale does not convert the infrastructure into storage facilities. Similarly, roads where trucks park temporarily are not storage infrastructure.

The Court concluded that none of the claimed exemptions applied to the services rendered to the appellant.

Issue 3: Whether the appellant qualifies as 'State' under Article 12 and is exempt

The appellant contended that as a government entity, it should be considered 'State' under Article 12 of the Constitution and thereby exempt from service tax.

The Court clarified that the definition of 'State' in Article 12 applies solely for Part III of the Constitution, which deals with Fundamental Rights, and only "unless the context otherwise requires." This definition does not extend to tax laws or other statutory provisions.

The Court rejected the appellant's attempt to apply Article 12's definition out of context to claim exemption, emphasizing that tax liability is governed by specific statutes and notifications, not constitutional definitions meant for fundamental rights jurisprudence.

The submission was thus dismissed.

Issue 4: Limitation and invocation of extended period under section 73(2)

Section 73 of the Finance Act, 1994 provides a normal limitation period of 18 months for issuing SCNs for service tax non-payment, extendable to 5 years if the non-payment is due to fraud, collusion, willful misstatement, suppression of facts, or intent to evade tax.

The appellant argued that the SCN issued on 2.2.2018 was beyond the normal limitation period (18 months from 25.4.2016) and that extended limitation could not be invoked as the appellant, being a government organization, could not have malafide intent.

The Court held that the law does not exempt government entities from limitation rules or presume absence of malafide intent. Each case must be examined on its facts.

Here, the appellant had not registered for service tax, nor declared services received, and did not voluntarily pay tax even after investigation commenced. The appellant's conduct did not demonstrate responsible behavior consistent with absence of intent to evade tax.

The Court found sufficient grounds to invoke the extended period of limitation and upheld the SCN as timely issued.

Issue 5: Imposition of penalties under sections 77 and 78

Section 77 imposes penalty for failure to file returns, and section 78 penalizes failure to pay service tax.

The appellant admitted non-filing of returns and non-payment of service tax.

The Court held that since the extended period of limitation was rightly invoked due to willful non-compliance, penalties under sections 77 and 78 were justified and deserved to be upheld.

Significant holdings and core principles established:

"After the Finance Act, 1994 was repealed, if actions relating to rights, privileges, obligations or liabilities which had accrued before the repeal have be taken, the very officers who were authorised to take them before the repeal can take such actions. In other words, it is the successor officers who have to carry on the functions under the repealed acts to the extent they are saved."

This principle clarifies the continuity of jurisdiction and authority despite repeal of laws, avoiding administrative vacuum.

On exemption claims, the Court held:

"Mandis or market places are meant for business only and nothing else. To suggest that these are not meant for business or commerce is preposterous."

and

"Market is not a place of storage but a place where goods are sold and bought. ... Simply because the produce is kept on the platform until it is sold, the platform does not become a place of storage."

These observations establish that the purpose and predominant use of infrastructure determine applicability of exemption notifications.

Regarding Article 12, the Court emphasized:

"The definition of 'State' under Article 12 is meant for only Part III (Fundamental Rights) of the Constitution and ... does not apply to tax laws or other statutory provisions."

This restricts the constitutional definition's applicability strictly to fundamental rights context.

On limitation, the Court stated:

"There is no such legal presumption in the law [that government entities cannot have malafide intent]. Every case has to be examined on the facts of the case."

This affirms that government entities are equally liable under tax laws and limitation provisions.

Finally, the Tribunal upheld the demand of Rs. 14,23,657 under section 73(2) of the Finance Act along with interest under section 75 and penalties under sections 77 and 78, dismissing the appeal.