Custom, Excise & Service Tax Tribunal
Supertech Infrastructure Private ... vs Commissioner, Customs, Central Excise ... on 31 January, 2023
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. 1
Service Tax Appeal No. 53185 of 2016
(Arising out of Order-in-Original No. 43/COMMR./DDN/2016 dated 23.09.2016 passed
by the Commissioner, Customs, Central Excise & Service Tax, Dehradun)
M/s. Supertech Infrastructure
Private Limited .... Appellant
C-1, Roshnabad,
Haridwar
VERSUS
Commissioner of Customs,Central
Excise & Service Tax Commissionerate,
Dehradun ....Respondent
APPEARANCE:
Shri B.L.Narasimhan and Ms. Neha Chaudhary, Advocates for the Appellant Shri Ravi Kapoor, Authorized Representative of the Department CORAM :
HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Date of Hearing/ Decision: January 31, 2023 FINAL ORDER NO. _50106/2023 JUSTICE DILIP GUPTA This appeal seeks the quashing of the order dated September 23, 2016 passed by the Commissioner, Customs, Central Excise and Service Tax Commissionerate, Dehradun1.
2. The appellant has primarily challenged the order to the extent it confirms the demand of Rs.3,30,09,780/- under "commercial or industrial construction" service defined under section 65(25) (b) of the Finance Act, 19942 and made taxable under section 65(105)(zzq) of the Finance Act as also the imposition of penalty.
1. the Commissioner
2. the Finance Act 2 ST/53185/2016
3. The appellant has drawn a chart in paragraph 7 of the synopsis to indicate the demand purposed in the show cause notice as also the status and the penalty imposed. It would be useful to reproduce the said chart to appreciate the contention advanced by the learned counsel for the appellant and the same is as follows:
S.No Issues Demand Status Penalty
purposed in Imposed
show cause
notice
1. Short payment of interest 24,261 Paid along with interest and -
on late payment of appropriated
Service Tax
2. Service Tax on freight 47,641 Paid Rs.19,920/- along with interest, 19,920
and cartage which has been appropriated. Demand
of Rs.27,721/- dropped.
3. Service Tax on legal 1,03,277 Paid Rs.12,273/- along with interest, 12,273
services under reverse which has been appropriated. Demand
charge of Rs.91,004/- has been dropped.
4. Incorrect credit as 93,610 Paid along with interest and 93,610
invoices not in the name appropriated
of service provider
5. Excess abatement on 23,077 Paid along with interest and 23,077
mandap keeper service appropriated
6. Service Tax on renting of 9,43,692 Paid along with interest and 9,43,692
immovable property appropriated
service
7. Service Tax on grid 5,20,338 Paid Rs. 2,96,375/- along with interest, 2,96,118
electricity billing, which has been appropriated. Demand
common area of Rs.2,24,220/- has been dropped.
maintenance & back up
electricity charges under
BSS
8. Credit demand @6% of 3,10,58,645 Dropped entire demand -
the value of exempted
service in the nature of
sale of plots, under Rule
6(3) of Credit Rules.
9. Wrong exemption under 3,35,26,361 Rs.3,30,09,780/- confirmed. Demand 3,30,09,780
CICS due to invalid of Rs.5,16,581/- dropped.
completion certificate
10. Service Tax due to 4,366 Paid along with interest and 4,336
difference in taxable appropriated.
value of renting service in
ST-3 return
11. Late fee due to non-filing Not Paid late fee of Rs.20,000/- -
of ST-3 return quantified appropriated.
Confirmed Service Tax 3,44,02,806
Demand=Rs.3,43,09,196/-
Amount paid=Rs.12,99,416/-
Amount dropped=Rs.8,59,526/-
Total Amount disputed=Rs.3,30,09,780/-
Confirmed credit amount=Rs.93,610/-, entire paid and appropriated.
Amount dropped= Rs.3,10,58,645/-
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ST/53185/2016
4. It would be seen from a perusal of the aforesaid chart that what is assailed in this appeal is the demand of Rs.03,30,09,780/- under „commercial or industrial construction‟ service and the penalty involved.
5. The contention that is sought to be advanced by Shri B.L. Narasimhan, learned counsel for the appellant is that the demand could not have been confirmed under „commercial for industrial construction‟ service for the simple reason that no sale was involved. According to the learned counsel for the appellant only a sub-lease was executed by the appellant. To support this contention, learned counsel has placed the lease deed executed on July 05, 2007 by the State Infrastructure and Industrial Development Corporation of Uttaranchal Limited and the appellant, wherein lease was granted to the appellant for a period of ninety years for the purpose of construction of "Commercial Hub" or "Project". Learned counsel has also placed clauses (5a) and (6) of the lease deed to contend that the lessee could not have sold, transferred, assigned or otherwise parted with the possession of the whole demised site except with the previous concent in writing of the lessor and that the lessee could sublet the whole or any part of the building that may be erected upon the demised site for the said commercial purposes only on a tenancy as per prevalent law and mutually agreed terms and condition.
6. Learned counsel for the appellant also submitted that in any view of the matter even if it is assumed that some service was provided, then too it would fall under „works contract‟ and not under the „commercial or industrial construction‟. 4
ST/53185/2016
7. An application bearing no. 50555 of 2021 has been filed by the appellant for bringing on record additional documents and miscellaneous application bearing no. 50554 of 2021 has been filed by the appellant for raising additional grounds.
8. The application bearing no. 50554 of 2021 filed for urging additional grounds was also allowed by order dated January 06, 2022, and the same is reproduced below:
" This application has been filed under rule 10 read with rule 41 under Customs, Excise and Service Tax Appellate Tribunal (Procedure), 1982 for granting permission to urge certain additional grounds at the time of hearing of the appeal.
2. Learned Counsel for the applicant submitted that the applicant had received land from State Infrastructure and Industrial Development Corporation of Uttaranchal („SIDCUL‟) under a 90 years lease and after constructing the mall on the said land, the applicant sub-leased the shops/units in the mall to various sub- leases and hence there was no intention on the part of the applicant to sell the shops to the third parties.
3. It is for this reason that learned counsel submits that the demand cannot be sustained under section 65(105) (zzq)/ section 66E(b) of the Finance Act, 1994 for the period from April 2010 to March, 2014. However, grounds to support this contention were not taken in the appeal and, therefore, learned Counsel has sought permission to urge these grounds at the time of hearing of the appeal.
4. Shri Nagendra Yadav, learned Authorised Representative appearing for the Department has strongly opposed the application and has submitted that there was no reason for the applicant not to take such grounds in the appeal and the grounds now sought to be added would be contrary to the grounds earlier taken.
5. We find substance in the submission advanced by the learned Counsel for the applicant for urging the additional grounds stated in paragraph F and G of application. These two grounds contained in F and G may be added after ground E in the grounds of appeal.
6. The application is, accordingly, allowed."
9. The application bearing no. 50555 of 2021 filed for bringing on record additional evidence was allowed by order dated January 06, 2022, which is reproduced below:
"This application has been filed for bringing on record the additional documents in terms of Rule 28 and 41 of the Customs, 5 ST/53185/2016 Excise and Service Tax Appellate Tribunal (Procedure) Rule, 1982.
2. It is stated that in order to support the additional grounds separately urged, it is necessary bring on record the documents which could not be filed with the appeal.
3. Learned Counsel for the applicant submitted that to substantiate the facts that shops/units were sub-leased by the applicant to various sub-leases and that there were no intention to sell the same on behalf of the applicant it is necessary to bring on record various sub-leases executed between the applicant and the sub-leases.
4. Shri Nagendra Yadav, learned Authorized Representative appearing of the Department has opposed this application and has submitted that the applicant should have brought on record these documents as they were in existence at that time when the appeal was filed.
5. In our opinion, as the application for urging additional ground has been allowed, it would be necessary to allow this application so as to enable the applicant to urge the additional grounds.
6. The application is, accordingly, allowed. Let the documents from serial no. 2 to 11 contained in pages 4 to 240 of this application to be taken as part of the appeal."
10. It is seen that both the issues now sought to be raised by the learned counsel for the appellant were not raised before the Commissioner. It would not be appropriate for the Tribunal to examine these issues in the first instance. The matter would, therefore, have to be remitted to the Commissioner to examine these issues. For this purpose, we grant liberty to the appellant to place all the documents, as have been allowed to be placed in the aforesaid application, before the Commissioner and also to raise all grounds that have been permitted to be raised. The Commissioner shall, thereafter, pass a fresh order after providing an opportunity to the appellant. Since the issue of imposition of penalty has also been raised by the learned counsel for the appellant, it would be open to the appellant to raise this issue also before the Commissioner. The Commissioner shall decide the matter in accordance with law, without being influenced by any of the observations made in this order.
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ST/53185/2016
11. The appeal is, accordingly, disposed of with the aforesaid observations.
(JUSTICE DILIP GUPTA) PRESIDENT (HEMAMBIKA R. PRIYA) MEMBER (TECHNICAL) Archana