Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S Vipra Enterprises on 29 November, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT - III
Appeal No.ST/596/2010-SM
Arising out of: OIA No.380/2010(STC)/MM/Commr.(A)/Ahd, dt.14/20.10.2010
Passed by: Commissioner of Central Excise & Customs (Appeals), Ahmedabad
For approval and signature:
Mr. H.K. Thakur, Honble Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the .
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant:
M/s Vipra Enterprises
Respondent:
CST Ahmedabad Represented by:
For Assessee: Shri J.C. Patel, Adv. For Revenue: Shri P.N. Sarvaiya, Astt. Commissioner (A.R.) CORAM:
MR. H.K. THAKUR, HONBLE MEMBER (TECHNICAL) Date of Hearing/Decision:29.11.2013 Order No.A/11634/2013, dt.29.11.2013 Per: H.K. Thakur
1. This appeal has been filed by the appellant against OIA No. 380/2010(STC)/MM/Commr.(A)/Ahd, dt.20.10.2010. The issue involved in the present proceedings is whether a proprietary concern can be considered as a commercial unit for charging of Service Tax under Business Auxiliary Service (BAS).
2. Shri J.C. Patel (Advocate), appearing on behalf of the appellant argued that under Circular No.80/10/2004-ST, dt.17.09.2004, it has been clarified in Para 18.3 that Service Tax liability under Business Auxiliary Service has to be paid by a company established under the Companies Act, 1956 or a corporation or a body corporate established by or under any law, partnership firms, societies, registered under the Societies Registration Act, 1860, or under any other law under which co-operative societies are established. It was his case that as per the definition of Taxable Service given under Section 65(105)(zzb) of Finance Act, 1994, prior to 01.05.2006 the definition was only mentioning Commercial concern in relation to Business Auxiliary Service. That only with effect from 01.05.2006, the word Commercial concern was substituted by the words Any person by the Finance Act, 2006. That as per CBEC Circular No.62/11/2003-S.T. dt.21.08.2003 also, it was clarified that with respect to commissioning or installation services, services provided by an individual will be exempt from Service Tax. He relied upon the following case laws, in support of his arguments that the Service Tax from individuals is not attracted:-
a) Star Energy Systems Vs CST Ahmedabad 2010 (20) STR 479 (Tri-Ahmd)
b) Mangal Singh Vs CCE Jaipur-I 2008 (11) STR 17 (Tri-Del)
c) Infinity Credit Vs. CCE Jaipur 2009 (16) STR 61 (Tri-Del)
2.1 It was further argued by the Advocate that in view of various judicial pronouncements and clarifications issued by CBEC, there was no conflict that Service Tax under Business Auxiliary Service is not required to be paid by the proprietary concerns. That only under judgments delivered by CESTAT, in the case of CCE Jaipur Vs R.S. Financial Services [2008 (9) STR 231 (Tri-Del)] and Infinity Credit Vs. CCE Jaipur [2009 (16) STR 61 (Tri-Del)], it was held that the individual providing services can also be considered as commercial concern. It was, thus argued by the Advocate of the appellant that as the period involved in the present proceedings is from 2004-2005 to 2007-2008, which is prior to the orders passed by the CESTAT in the case of CCE Jaipur mVs. R.S. Financial Services (supra) and Infinity Credit Vs. CCE Jaipur (supra), therefore, extended period cannot be invoked for demanding Service Tax as there is no mis-statement / suppression with intention to evade Service Tax on the part of the appellant. That the show cause notice has been issued on 24.09.2009 for the period 01.04.2004 to 31.03.2008 which is clearly time barred in view of the following case-laws:-
a) Triveni Engg. Works Ltd Vs CCE Allahabad [1996 (88) ELT 238 (Tribunal)]
b) Garden Silk Mills Ltd. Vs. CCE Surat-I [2009 (237) ELT 360 (Tri-Ahmd) ]
c) CCE Surat-I Vs. Garden Silk Mills [2010 (257) ELT 365 (Guj.)]
3. Shri P.N. Sarvaiya, (A.R.) arguing on behalf of the Revenue defended the order passed by the first appellate authority and relied upon the judgment of CESTAT in the case of CCE Jaipur Vs R.S. Financial Services (supra).
4. Heard both sides and perused the case records. Appellant has not contested the issue on merits but has contested the demand on the grounds that extended period cannot be invoked in the present proceedings, because there was a bonafide view, as per CBEC circular and various judicial pronouncements that the word commercial concern did not include the services provided by the individuals or proprietary concern. The word commercial concern under Section 65(105)(zzb) of Finance Act, 1994 was substituted with the word Any person with effect from 01.05.2006. Appellant started paying Service Tax after availing the admissible value based exemption. Even services rendered prior to 01.05.2008 and amount received after 01.05.2006 was not required to be charged to Service Tax. Under the above facts and circumstances, no suppression or mis-statement with intention to evade payment of Service Tax can be attributed on the part of the appellant. Under similar circumstances, it has been held by CESTAT and Gujarat High Court in the case of Triveni Engg. Works Ltd Vs CCE Allahabad (supra), Garden Silk Mills Ltd. Vs. CCE Surat-I (supra) and CCE Surat-I Vs. Garden Silk Mills (supra) that the extended period cannot be invoked.
4.1 In view of the above judicial pronouncements, the extended period of five years cannot be invoked in the present proceedings as there is no suppression/mis-statement with intention to evade the payment of Service Tax. Appeal filed by the appellant is allowed as time barred.
(Operative portion of the order pronounced in Court) (H.K. Thakur) Member (Technical) cbb ??
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