TMI Blog2024 (2) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... As regards the benefit of Notification 45/2010-ST dated 20.07.2010, it is not necessary to decide on this issue. As regards the penalties imposed, since the demand itself is not sustainable the penalties are dropped. Demand on Rent-a-Cab service - HELD THAT:- Since the appellant has not adduced any evidence to the effect that the service is used either directly or indirectly in the other services rendered by the appellant and hence the appeal in this regard is disallowed and the penalties imposed under Section 77 78 are upheld. Appeal disposed off. - Hon'ble P. A. Augustian , Member ( Judicial ) And Hon'ble Mr. Pullela Nageswara Rao , Member ( Technical ) None for the Appellant Mr. Neeraj Kumar , Authorised Representative for the Respondent ORDER Per : Pullela Nageswara Rao M/s. Praveen Electrical Works, appellant is a proprietary concern engaged in execution of works contract and registered as a dealer under the Karnataka Value Added Tax Act, 2003. 2. The brief facts are the appellant is engaged in electrical contract works to various Government Departments and are subjected to Sales Tax/VAT. The gross contract receipts are tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST dated 21.08.2003 should be extended; the Rent-a-Cab service was rendered by the appellant separately on monthly contract basis and it is not connected to any other service rendered by the appellant, hence the demand was correctly confirmed under the category of Rent-a-Cab Service; in this case also no Cenvat credit or benefit of general exemption on the cost of material was claimed by the appellant hence they are entitled for the benefit of Notification No. 9/2004-ST dated 9.07.2004 and 12/2003-ST; the appellant has not registered with the Department and not intimated about rendering of taxable services. The appellant has suppressed the facts from the Department and hence is liable for penalty under Section 78, ibid. The appellant has filed this appeal assailing the order of the Commissioner (Appeals). 4. The appellant in the appeal has contended that their activities attract the statutory definition of Erection, Commissioning or Installation Service was not proved by the Department to be a taxable service; the impugned order is passed without sanction and authority of law hence violated Article 263 of Constitution of India which provides no tax shall be levied or collecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arily, all the works contract receipts relating the disputed period were duly recorded in the books of accounts and were audited by the Chartered Accountant;the Department has failed to prove that there were suppression of facts on the part of the appellant with intent to evade payment of service tax, hence the demand of service tax is not tenable in law.;the Department has chosen not to appreciate the facts that the entire works contract receipts of the appellant were deemed to be sale and liable to Sales Tax/VAT under Karnataka Sales Tax and Karnataka Value Added Tax, consequent upon the amendment to the Constitution of India and insertion of the Article 363 by virtue of this insertion the scope of tax on sale or purchase of goods was enlarged by a deeming fiction, which had the effect of holding the non-sale transaction as sales transaction liable to Sales Tax,by virtue of this amendment, the appellant pays Sales Tax/VAT on 100% value of their contract and therefore it is an undisputed fact that they are engaged in the execution of Works Contract which is indivisible and composite in nature.The appellant submits that the Department has ignored the clarification of the Ministry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the nature of works contract hence not liable to service tax; they are also entitled to benefit of Notification No. 45/2010-ST dated 20.07.2020 issued under Section 11C of the Central Excise Act, 1944 read with Section 83 of the Finance Act,hence not liable to service tax in terms of the said notification and that the Tribunal has consistently held and extended the benefit of Notification No. 45/2020-ST by holding that no service tax is recoverable, if service is rendered in relation to transmission and distribution of electricity;the findings of the learned Commissioner (Appeals) are based on the evidence not relating to the impugned period, which are based on the revised letter of award of contract No. HESCOM/SSC/(T P)/EE/2/1564/2006-07 dated 19.07.2006 issued by the Superintendent Engineer HESCOM. The said document is not applicable for the impugned period as the same is dated 19.07.2006 while the impugned period is 01.07.2003 to 31.03.2006; The orders of the lower authorities are based on the documentary evidences not relevant for the impugned period hence the orders of the lower authorities are unsustainable in law. 7. Heard the learned AR and perused the records and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
