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2019 (3) TMI 821

3, the petitioner cannot be said to be a generating company. It has not claimed itself to be so. It also cannot be said that, the petitioner is engaged in the supply or trading of electricity as, the definition of ‘supply’ and ‘trading’ does not allow the petitioner to come within the same. The petitioner is not an electricity trader as defined in Section 2(26) of the Electricity Act, 2003. The petitioner does not have a licence to undertake trading in electricity under Section 12 of the Electricity Act, 2003. The petitioner also cannot be said to be engaged in the business of transmission as, the petitioner does not have such a licence. The petitioner is not a person authorised to transmit, supply, distribute or undertake trading in electricity. - In view of the definitions as obtaining in the Electricity Act, 2003, therefore, the petitioner cannot be said to be distributing or selling or trading in electricity when, it is receiving high-tension supply from Indian Power Corporation Ltd. and providing low-tension electricity to the occupants of the commercial complex. Sale, trading and distribution being taken out of the contention, the only other thing that remains to describ .....

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ceipt of electric supply redistributes the same to the occupiers of the commercial complex. The petitioner has installed sub- meters for the respective occupiers. Based on the readings of such sub-meters, the petitioner raises bills upon such occupiers. The petitioner initially collected Service Tax. However, upon objections being raised by the some of the occupiers, the petitioner consulted the Superintendent of Service Tax, ST II Commissionerate for determining whether such redistribution of electricity was exigible to Service Tax under the Act of 1994 or not. The Superintendent of Service Tax held the view that, such a service is exigible to tax. The petitioner had obtained legal advice which was of a contrary view than the Superintendent of Service Tax. Thereafter, the petitioner by its letter dated January 30, 2015 intimated the respondent no. 3 that, it was not liable to pay Service Tax. The Assistant Commissioner of Service Tax, by a letter dated March 27, 2015, held the view that, the redistribution of electricity by the petitioner was eligible to Service Tax. Learned Advocate for the petitioner has submitted that, the action of redistribution of electricity is a sale/tradi .....

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support of his contention, he has relied upon 2016 Volume 1 Supreme Court Cases page 170 (CCE Customs v. Larsen & Toubro Ltd.). Learned Advocate for the petitioner has submitted that, in the event the transaction between the petitioner and the occupiers, is found not to be a sale as, the petitioner did not possess the requisite licences, then, the same transaction cannot be exigible to Service Tax as, such a transaction is void in the eye of law. Void transaction cannot be exigible to any tax. He has submitted that, the dominance purpose test should be applied to find out as whether the transaction is exigible to Service Tax or not. He has relied upon 2006 Volume 2 S.T.R page 161 (Supreme Court) (Bharat Sanchar Nigam Ltd. v. Union of India) and submitted that, applying such test, since, the transaction is eminently one of sale and the sale and the so-called service being indivisible, then, the transaction is to be treated as a sale. Therefore Service Tax is not leviable. Without prejudice to his previous contentions, learned Advocate for the petitioner has submitted that, in view of Section 66D(e) of the Finance Act, 1994 read with Section 66B thereof, trading of goods is exclu .....

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tration Number of the petitioner. The petitioner having collected Service Tax, is obliged to deposit the collected tax with the authorities. Moreover, the petitioner itself is of the view that, Service Tax is payable in respect of the transaction concerned. Referring to Section 65B(23) of the Finance Act, 1994, learned Advocate for the respondents has submitted that, all services are taxable save and except which are excluded specifically by the statute. He has referred to Sections 65B(51), 66B, 66D(k) in support of his contentions. Referring to the memorandum of understanding entered into between the petitioner and the licensee, learned Advocate appearing for the respondents has submitted that, the petitioner is a consumer. Therefore, the petitioner cannot claim itself to be a trader. The petitioner has no approval from any of the State or the Central Authorities, to trade in electricity. The bills raised by the petitioner are as a consumer. The licensee has raised bills on the petitioner treating the petitioner as a consumer. The transaction in question, does not fall within the negative list and therefore, the transaction is exigible to Service Tax. Learned Advocate appearing fo .....

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a licence to undertake trading in electricity under section 12; ………………………. (28) "generating company" means any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person, which owns or operates or maintains a generating station; (29) "generate" means to produce electricity from a generating station for the purpose of giving supply to any premises or enabling a supply to be so given; ……………………….. (38) licence means a licence granted under section 14; (39) licensee means a person who has been granted a licence under section 14; ……………………… (70) "supply", in relation to electricity, means the sale of electricity to a licensee or consumer; (71) "trading" means purchase of electricity for resale thereof and the expression "trade" shall be construed accordingly; (72) transmission lines" means all high pressure cables and overhead lines (not being an essential part of the distribution s .....

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within the meaning of clause (29A) of article 366 of the Constitution; or (iii) a transaction in money or actionable claim; (b) a provision of service by an employee to the employer in the course of or in relation to his employment; (c) fees taken in any Court or tribunal established under any law for the time being in force. Explanation 1 . - For the removal of doubts, it is hereby declared that nothing contained in this clause shall apply to,- (A) the functions performed by the Members of Parliament, Members of State Legislative, Members of Panchayats, Members of Municipalities and Members of other local authorities who receive any consideration in performing the functions of that office as such member; or (B) the duties performed by any person who holds any post in pursuance of the provisions of the Constitution in that capacity; or (C) the duties performed by any person as a Chairperson or a Member or a Director in a body established by the Central Government or State Governments or local authority and who is not deemed as an employee before the commencement of this section. ………………….. (50) tax means service tax leviable under th .....

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fined in Section 65B(44) as an activity carried out by a person for another for consideration and includes a declared service. The activity of the petitioner comes within the definition of service. The activity of the petitioner sought to be made exigible to tax does not come within exclusions contained in Section 65B(44). The Finance Act, 1994 provides a negative list of services in Section 66D. If, an activity which does not come within the negative list of services as defined in Section 66D of the Finance Act, 1994, such an activity is to be termed as a service exigible to tax under the Finance Act, 1994. It is the contention of the petitioner that, the activity of the petitioner comes within the negative list of services defined in Section 66D particularly in view of Section 66D(e) and (k). As noted above, the petitioner cannot be said to be indulging in trading of goods or in transmission or distribution of electricity within the meaning of the Electricity Act, 2003. Although electricity is a goods as held in National Thermal Power Corpn. Ltd. (supra) and is capable of being traded, the petitioner does not have the requisite licence to trade in electricity. The activity of the .....

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