Custom, Excise & Service Tax Tribunal
Dhananjay G Kela vs Ahmedabad-Iii on 10 December, 2024
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
AHMEDABAD
REGIONAL BENCH, COURT NO. 3
SERVICE TAX APPEAL NO. 11050 OF 2015
(ST/ROM/10853/2024)
(Arising out of OIO-AHM-EXCUS-003-COM-036-14-15 Dated- 25/03/2015 passed by
Commissioner of Central Excise, Customs and Service Tax-AHMEDABAD-III)
DHANANJAY G KELA Appellant
15/b, Shri Ram Park Society, 2nd Railway Garnala,
Patan, Gujarat
Vs.
C.C.E. & S.T.-AHMEDABAD-III Respondent
Custom house... 2nd floor, Opp. Old Gujarat High Court, Navrangpura, Ahmedabad, Gujarat-380009 Appearance:
Shri Jigar Shah and Shri Amber Kumrawat, Advocates for the Appellant Shri Rajesh K Agarwal, Superintendent (AR) for the Respondent CORAM: HON'BLE MR. RAMESH NAIR, MEMBER ( JUDICIAL ) HON'BLE MR. C. L. MAHAR, MEMBER ( TECHNICAL ) FINAL ORDER NO._13163/2024 Date of Hearing : 03.12.2024 Date of Decision : 10.12.2024 RAMESH NAIR The revenue filed the present application for rectification of mistake.
2. Shri Rajesh K Agarwal learned Superintendent AR appearing on behalf of the revenue applicant pointed out in the order No. 11103/2024 dated 17.05.2024 that in para 4 sub para 2, it is stated that the show cause notice has not proposed the demand under correct category of service therefore the demand shall not be sustainable. He took us to the order-in-original wherein the services were classified separately under commercial or industrial construction service as well as works contract service. Therefore considering the entire service is classified under commercial or industrial construction service is not correct, this resulted in an apparent error in the Page |2 ST/ROM/10853/2024 IN ST/11050/2015-DB tribunal's order which needs to be corrected and effect of the same may be given in the order.
3. Shri Jigar Shah along with Shri Amber Kumrawat Advocates appearing on behalf of the assessee /non-applicant submits that even though there is an error in considering the entire service as classified by the department under commercial or industrial construction service the demand is not sustainable on the ground that entire service was provided to the Governmental authority for distribution/transmission of power to GETCO and also to the municipality. He further submits that the entire demand was set aside also on the ground of time bar, for this reason also the operative part of the order allowing the appeal will not be affected.
4. We have carefully consideration the submissions made by both the sides and perused the records. We find that in the impugned order-in- original the service was separately classified under commercial or industrial construction service as well as works contract service and demand of service tax were also made separately therefore to that extent there is an error in sub para of para 4 starting from "From the above decision it is settled law ............ in the present case is not sustainable on this ground itself". The said para is reproduced below:
"From the above decision it is settled law that show cause notice has not proposed the demand under the correct category of the service the demand shall not sustain. Following the rule of the above decision in the present case also since the demand was raised under commercial and industrial construction services whereas the correct classification of the service is work contract service, accordingly the demand in the present case is not sustainable on this ground itself."
From the reading of the above para in the tribunal's order, we find that though in the impugned order the classification of service was made separately under commercial or industrial construction services as well as under works contract service there is an apparent error in the order which Page |3 ST/ROM/10853/2024 IN ST/11050/2015-DB needs to be corrected, accordingly the paragraph starting from 'From the above decision it is settled law .......... accordingly the demand in the present case is not sustainable on this ground itself' is deleted. Having rectified the order as above we agree with the submission of the learned counsel for the assessee that entire service was provided to GETCO and Patan Municipality therefore firstly the service provider is not in the nature of commercial or industrial service accordingly the same is not taxable. Moreover, the service provided to GETCO being in relation to transmission of electricity were exempted in terms of Notification No. 45/2010-ST dated 20.07.2010 for the period of 20.07.2010 and for the period from 20.07.2010 vide Notification No. 11/2010-ST dated 20.07.2010 and the same services are not taxable from 01.07.2012 in view of negative list of services under Section 66(b) of Finance Act, 1994. Therefore for this reason also the services not liable to service tax. This view is supported by this Tribunal decision in the case of Gujarat Energy Transmission Corporation Ltd 2024 (2) TMI 1401 - CESTAT. It is also observed that in this tribunal's order dated 17.05.2024 the demand was also set aside on the ground of time bar the relevant para is reproduced below:
"Since, the issue involved is interpretation of classification of service and admittedly service work provided to the Government Authority and Public Sector undertaking, the appellant's bona fide belief that the activity is not liable to Service Tax cannot be doubted with. The service were provided to Government Agency the transaction cannot be hidden hence the suppression of fact with mala fide intention to evade payment of Service Tax does not exist in the present case. Accordingly, the demand for the extended period is also hit by limitation."
From the above para it is clear that the entire demand being time barred is set aside on the ground of time bar. In view of the above though the order stands rectified however, operative part of the order whereby the appeal was allowed is not disturbed.
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5. Accordingly, we maintain that appeal is allowed and the ROM application is disposed of in the above terms.
(Order pronounced in the open Court on 10.12.2024) (RAMESH NAIR) MEMBER ( JUDICIAL ) (C. L. MAHAR) MEMBER ( TECHNICAL ) Dharmi