TMI Blog2014 (3) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of composite contracts can be subjected to levy of Service tax. Extended period of limitation - Held that:- In none of the Returns filed by them, they have indicated that they are rendering the services to GIDC or the amount of consideration received for such services. Therefore, it has to be concluded that the appellant had suppressed the fact of rendering services to GIDC and receiving consideration for the same. Therefore, invocation of extended period of time is clearly justified. Waiver of penalty u/s 80 - Held that:- appellant has not shown any reasonable cause for failure to discharge of Service Tax liability. The appellant was well aware of the provisions of law inasmuch as they were discharging the Service tax liability in respect of the very same activity undertaken for other entities. - Demand and penalty confirmed - Decided against the assessee. - Appeal No. ST/62/2009 - Final Order No. A/150/2014-WZB/C-I(CSTB) - Dated:- 24-1-2014 - Mr. P R Chandrasekharan and Mr. Anil Choudhary, JJ. For the Appellant : Shri M H Patil with Ms Padmavati Patil, Advs For the Respondent : Shri Rakesh Goyal, Additional Commissioner (AR) JUDGEMENT Per: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Construction and accordingly passed the impugned order. 3. The learned Counsel for the appellant submits that GIDC is a Government of India undertaking and its main objective is establishing and organizing industrial estates and commercial centres. As part of this activity, they are required to provide amenities such as roads, supply of water or electricity, street lights, drainage, sewerage etc. and such activities are basically creation of infrastructure and, therefore, cannot be considered as commercial or industrial in nature. In the present case, pipelines have been laid for providing water supply through GIDC compound, Versa to GIDC, Waterway at Dahej and providing water supply would not come under the category of Commercial or Industrial Construction. It is his further contention that the CBE C vide Circular no. 80/10/2004-ST dated 17.09.2004 had clarified that the tax is limited only in case the service is provided by a commercial concern. Similarly, vide Circular no. 116/10/2009-ST dated 15.09.2009, the CBE C had clarified that canal system built by the Government will not be chargeable to Service Tax as it does not come under the commercial or industrial construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the scope of the levy of Service Tax. Therefore, the plea of bona fide belief entertained by the appellant is without any evidence especially that the appellant was discharging the service tax liability in respect of similar activity undertaken in respect of the other commercial bodies. 4.2 As regards the issue of time bar raised by the appellant, the learned AR submits that the letter of the Superintendent referred to the appellant prepared in January 2005 is much before the inception of levy in June 2005 and, therefore, the said letter issued cannot be a basis for coming to any conclusion that the department was aware of the activity undertaken by the appellant. He also points out that in the ST-3 returns filed by the appellant for the relevant period, the appellant had not disclosed that they were undertaking the activities under the exempted/non-taxable category. Therefore, the appellant has clearly suppressed the fact of rendering commercial or industrial construction services to GIDC and accordingly, the extended period of time has been rightly invoked. He also placed reliance on the decision of the Tribunal in the case of Nazareth Metal vs. CCE, Mumbai-II 2006(205 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression commercial centre has been defined as the site where Corporation builds shops and other buildings and makes them available for any commercial activity. Similarly, the expression Industrial area' has been defined as an area which is to be developed and where industries are to be accommodated. Section 3 of the Act dealing with Establishment and Constitution of the Corporation' reads as follows :- 3(1) For the purpose of securing and assisting in the rapid and orderly establishment and organization of industries in industrial areas and industrial estates in the State of Gujarat and for the purpose of establishing commercial centres in connection with the establishment and organization of such industrial, there shall be established by the State government in the Official Gazette, a Corporation by the name of the Gujarat Industrial Development Corporation. 5.3 From the above legal provisions, it is absolutely clear that the GIDC has been set up to establish and organize industry in industrial areas and industrial estates and for establishing commercial centres. In other words, the activity undertaken by the GIDC relates to commerce or industry. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Circular of the Board issued in 2004 and 2009, perusal of the same indicates that the Board had clearly clarified that the purpose and object of the construction needs to be seen and if it is for commercial or industrial purposes, the activity would be leviable to Service Tax. Therefore, we do not know how the appellants can mis-interpret the Circular issued by the Board in this regard. 5.7 As regards the invocation of extended period, the appellant's contention is that the Revenue was aware of the activity undertaken by them inasmuch as they had sought to classify the activity under Testing and Analysis service as early as in January, 2005. This contention merits rejection for the following reasons. A letter dated 18.01.2005 was issued to the appellant demanding Service Tax on the testing charges based on certain debit notes raised by the parties. From the debit notes, it cannot be established that the activity undertaken by the appellant pertained to Commercial or Industrial Construction Service. In any case, this debit note pertains to the period 2003-04, whereas the levy on pipelines construction came into force on 16.6.2005. Therefore, these invoices have no relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
