TMI Blog2017 (7) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner/AR for the Respondent ORDER [Order per: Shri M.V. Ravindran.] 1. This Stay Petition is filed by appellant for waiver of pre deposit confirmed amount of service tax liability along with interest and penalties imposed. The service tax liability has been confirmed against the appellant for the period October 2004 to May 2007 on grounds that appellant is liable to discharge service tax liability under the category of Erection, Commissioning and Installation charges for the services provided by them in respect of erection of sub stations, erection of transmission lines and in more cases erection of distribution transformers for Andhra Pradesh Southern Power Distribution Company Limited. We find that appeal would be disposed off after allowing application for waiver of pre deposit of the amount involved, we take up this appeal for disposal today. 2. Heard both sides and perused the records. 3. It is undisputed that appellant is rendering the services of execution of electrical contracts which cover the works relating to erection of Sub Stations, erection of transmission lines and in some cases, erection of distribution transformers for the electricity dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services relating to transmission and distribution of electricity during the aforesaid period. 4. It can be seen from the above reproduced notification that this notification unequivocally exempts any taxable services provided by the Service Provider to the service recipient relating to transmission and distribution of electricity. We fail to understand how the adjudicating authority came to the conclusion that this notification is applicable only to the transmission companies and not for the services rendered. Identical issue came before this very bench in the case of Hyderabad Power Installations (P) Ltd [2016 (45) S.T.R 217 (Tri.-Hyd) , wherein the bench took the following view: We find that the contentions of the appellant are not without merits. In the first place itself, we find from the records that the issue of taxability of services provided by service providers such as the appellant in categories like Erection Commissioning or Installation Services was in dispute and the department had contended that such services will not fall under the beneficial ambit of notification nos.11/2010-ST dated 27.02.2010 and 32/2010-ST dated 22.06.2010. The relevant portions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all such services were liable to service tax under the said Finance Act, which were not being levied according to the said practice during the peiod up to 26th day of February, 2010 for all services relating to transmission of electricity, and the period up to 21st day of June, 2010 for all taxable services relating to distribution of electricity. Now, therefore, in exercise of the powers conferred by section 11C of the Central Excise Act, 1944 (1 of 1944), read with section 83 of the said Finance Act, the Central Government hereby directs that the service tax payable on said taxable services relating to transmission and distribution of electricity provided by the service provider to the service receiver, which was not being levied in accordance with the said practice, shall not be required to be paid in respect of the said taxable services relating to transmission and distribution of electricity during the aforesaid period. 9. It is thus seen that the subsequent notification clearly stated that no service tax was required to be paid on all taxable services provided by service provider to service receiver during the period up to 26.02.2010 for all services relating to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. We find that the appeal before us is more than amply covered by the above judgments. The relevant portion of the judgment in Elmech Enterprises case is reproduced below: 5. The Notification No.45/2010-ST provides exemption to all taxable services relating to transmission and distribution of electricity by a person to another person during the relevant period covered by the proceedings. It is not limited only to taxable service of transmission by the transmission company as observed by the learned original adjudicating authority. Prima facie, I find that appellant is eligible for the benefit of Notification and therefore the appeal could have been heard without insisting on pre-deposit. Accordingly, the impugned order is set aside and the matter is remanded to the Commissioner (A) with a request to hear the appeal without insisting on any pre-deposit. 5. Similar view has been accorded in the other cited judgments also. Applying the dictum laid in the above judgments we find that the demand raised under ECIS is unsustainable and requires to be set aside which we hereby do. We do not interfere with the demand in regard to renting of Immovable Property. The appeal par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 11 (C) will normally be applicable in respect of refund claims emanating out of notifications issued under that section. However, if the issue involved in such 11 (C) notification is also subjudice in any Court etc., the said provision of Section 11 (C) will stand eclipsed by the general provision of Section 11 (B). The general provision of S 11 B 5 (ec) will then take precedence over the special provision in S 11 C ibid. In such a case, by implication the refund claimant will legally become entitled to file the claim within a time limit of one year from the date of judgment, decree, order or direction of appellate authority, Tribunal or Court in view of clause (ec) of explanation B of S 11 B (5) ibid. 13. In the circumstances, we are of the considered opinion that the limitation can therefore start clicking only from the date of final judgment /decree/decision of Court/Tribunal/Appellate Authority. In this case therefore the limitation period will only start, at the earliest, after 23.05.2016 i.e. date of Final Order No. A/30489/2016 stated above. 5. The view expressed by this bench is binding on us as it is correct view considering the fact of issuance 11-C No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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