TMI Blog2018 (7) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... t or not. Thus, in the impugned order the respective adjudicating authorities have tried to make out a new case against the appellants - The law has been settled that the adjudicating authority cannot go beyond the show cause notice, as it was held by Hon’ble Supreme Court in the case of CCE, Bhubaneswar-I vs. Chambdany Industries Ltd. [2009 (9) TMI 7 - SUPREME COURT OF INDIA] - the adjudicating authority has committed an error while confirming the impugned remand solely on the basis of lack of evidence qua discharging liability of VAT by the appellant when the same was not the issue in the show cause notices - demand set aside. Payment of Service Tax for the Period Prior to Registration through Cenvat Credit, whether admissible or not? - Held that:- It is the apparent and admitted case that the appellant has not discharged the Service Tax for the impugned periods within the stipulated time. Irrespective the payment of the same through the Cenvat Credit availed post the said periods, the fact still remains is that the deficiency has already been made good qua Service Tax for the said periods, however with delay - interest on delayed payment thereupon in accordance of Section 73 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice Tax Commissionerate, New Delhi for providing Maintenance or Repair Services. After an audit conducted by the Offices of the said Commissioenrate for the period 2006-07 to 2009-10 in Appeal No.53500/2014 and for the period 2006-07 to 2010-11 in Appeal No.52331 / 2016, it was observed that the appellants are rendering taxable services without discharging their liability qua the same. The adjudication in both the cases got initiated based on multiple show cause notices in each of the appeal as detailed below :- S. No . Issue and Category 1 st SCN dated 24.04.2012 2 nd SCN dated 19.12.2012 Period Amount (in Rs.) Period Amount (in Rs.) 1. Commercial or Industrial Construction Services a) Construction of woman hostel for and on behalf of the Ministry of Women and Child Development, Government of India 2007-08 to 2010-11 3,74,12,76 1 2011- 2012 Rs.1,83,12,196 b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAL 82,87,861 1,24,31,791 3. Since several services have been observed to have been provided by the appellant, we take the services one by one. (1) Commercial or Industrial Construction Services: 3.1 With respect to this service, it is submitted on behalf of the appellant that the liability of appellant qua this services have already been denied by the adjudicating authority in original order dated 25th April 2016 of Appeal No.52331 and since the said findings has not been challenged by the Department, it is prayed that the benefit thereof be given to the appellant in appeal No.53500 as well for doing away the levy on the ground of commercial or industrial construction services. Ld. DR has conceded the same. 3.1.1 After hearing both the parties and perusing the order dated 25th April, 2016 specifically in para 15 and 16 thereof, we hold that services of construction of women hostel for and on behalf of Ministry of Women and Child Development, Government of India and construction of Civil Services Offices Institute are not commercial in nature. In furtherance of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, who otherwise is providing the power backup to the sub-contractor. Since the appellant has failed to provide any document qua discharging his liability of sales-tax, the benefit of electricity being goods cannot be extended in his favour. The only exemption as can be claimed by the appellant can be for the diesel used in the Generator Sets for providing power backup, but no bill of purchase is provided by the appellant. Hence, the same has rightly been denied. It is impressed upon, once there is the liability to pay the duty and the same is payable with delay, the interest has mandatorily to follow. It is impressed upon that not a show cause notice is required to be issued for the same justifying the findings qua confirming the liability of appellant for the impugned service. The ld. DR has prayed for upholding the levy. 3.2.2 After hearing both the parties, we are of the considered opinion that as apparent from the show cause notices in both the appeals, it was not at all disputed by the Department as to whether on the power supply/power back up any sales tax has been paid by the appellant or not. Thus, in the impugned order the respective adjudicating authorities have tried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Cenvat Credit of a subsequent period is not legally correct and the impugned order has rightly hold that the same has wrongly been utilized in terms of proviso to Rule 4 of CCR, 2004. The Commissioner has rightly treated the same as non-payment of Service Tax holding the appellant liable to pay the same alongwith upto-date interest as recoverable under proviso to Section 73 to sub-section (1) of the Finance Act, 2004 read with Rule 14 of the Cenvat Credit Rules, 2004. Finally impressing upon that the Service Tax liability has since been already discharged, the interest liability on account of the late payment of the same has rightly been affirmed vide the impugned order. The demand qua this issue is prayed to be upheld. 3.3.2 After hearing both the parties qua this issue, we are of the opinion that it is the apparent and admitted case that the appellant has not discharged the Service Tax for the impugned periods within the stipulated time. Irrespective the payment of the same through the Cenvat Credit availed post the said periods, the fact still remains is that the deficiency has already been made good qua Service Tax for the said periods, however with delay. As a result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h input services, as were meant for rendering exempted services, is rightly been denied to the appellant by the adjudicating authority below. It is appellant s admitted case that despite discharging taxable as well as exempted services no separate accounts were maintained. No proper option as enshrined under Rule 6 (3) of CCE, 2004 has been availed. The liability, therefore is held to have rightly been affirmed. The order to this extent is upheld. (5) Services for providing skilled/semi-skilled workmen to assist the contractor in the execution of works as Manpower Recruitment or Supply Agency Services : 3.5 This service has been alleged to have been rendered by the appellants and the levy is confirmed by the impugned order in both the appeals. Ld. Counsel for appellant has submitted that appellant is not a manpower supply agency. It simply has recruited few people to supervise the quality of work to be executed on its behalf by the sub-contractor. However, the said recruited people were kept under the administrative authority of sub-contractor only. Salaries to these people were paid after deducting it from sub-contractor. Ld. Counsel has relied upon Commissioner, Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose, which clearly stipulates that the supply of work force by the appellant is to assist the contractor irrespective the work force provided by the appellant is for the execution of appellant s own work to be executed through the contractor but once it is provided to assist the contractor while executing the said work and an amount as consideration for providing the same is being received by the appellant from the contractor on monthly basis, the transaction is apparently the one of supply of manpower services. Irrespective the appellant is not an agency for the purpose, but apparently is providing voluminous manpower at different sites of its execution to various contractors at those sites, appellant being a big building constructor handling various building contracts by the Government. Rule 2 (1) (d) (F) (e) of Service Tax Rules, 1994 as stands amended w.e.f. 1st July, 2012 is also been rightly held to be not applicable to the case of the appellant. This Rule list out the persons liable to payment of Service Tax in the cases where persons other than the service providers have been made liable to pay Service Tax under reverse charge mechanism as already held above, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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