Custom, Excise & Service Tax Tribunal
Cc, Ce & St, Hyderabad-Iii vs M/S Sri Rajyalakshmi Cement Products on 25 July, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Division Bench Court I Appeal No. ST/1028/2011 (Arising out of Order-in-Original No. 15/2010-ST-HYD-III-ADJN-COMMNR dt. 21.09.2010 passed by CC, CE & ST, Hyderabad-III) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member (Judicial) Honble Sh. Madhu Mohan Damodhar, Member(Technical) 1. Whether Press Reporters may be allowed to see the 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 Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? CC, CE & ST, Hyderabad-III ..Appellant(s) Vs. M/s Sri Rajyalakshmi Cement Products ..Respondent(s)
Appearance Sh. Nagraj Naik, Deputy Commissioner (AR) for the Appellant.
Sh. Nitesh, Chartered Accountant for the Respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member (Judicial) Honble Sh. Madhu Mohan Damodhar, Member(Technical) Date of Hearing: 25.07.2016 Date of Decision: 25.07.2016 FINAL ORDER No._______________________ [Order per: Madhu Mohan Damodhar] The facts of the case in brief are that the respondent assessee were executing various contracts for Andhra Pradesh Power Distribution Corporation Ltd., (APPDCL) since 2003-04, which were in the nature of Erection, Commissioning or Installation Services, like erection of 6.3 kV line, erection of distribution transformers at sub-stations etc. Department (appellant in this case) took the view that the assessee is required to discharge service tax liability on these services. Hence, show cause notices dated 14.09.2009 and 15.03.2010 were issued to the assessee proposing demand of allegedly not paid service tax, interest therein and imposition of penalties. On adjudication, vide common order dated 21.09.2010, adjudicating authority dropped proceedings in both notices, relying on Boards Circular No. 123/5/2010 dated 24.05.2010.
2. Hence this appeal.
3. Learned AR Sh. Nagraj Naik on behalf of appellant department reiterated the grounds of appeal and in particular submitted that the services provided in this case are very much taxable on proper interpretation of Circular No. 123/5/2010-TRU dated 24.05.2010.
4. In response, Learned Counsel Sh. Nitesh for the respondent submitted that in view of Notification No. 45/2010-ST dated 20.07.2010, all taxable services relating to transmission and distribution of electricity provided by any service provider would not be taxable for the periods up to 26.02.2010 and up to 21.06.2010 respectively for services relating to transmission and distribution of electricity. At this juncture Learned AR fairly conceded that this was indeed the case.
5. Heard both sides and have also gone through the facts of records of the case. The issue at hand has been considered in a number of judgments, which have decided the matter in favour of the concerned service providers, for example:
(i) M/s West Bengal State Electricity Transmission Company Ltd., Vs CST, Kolkata [2015-TIOL-739-CESTAT-KOL]
(ii) S. Ravi Chandran Vs CCE, Madurai [2015-TIOL-381-CESTAT-MAD]
(iii) M/s Kedar Constructions Vs CCE, Kolhapur [2014-TIOL-2138-CESTAT-MUM] Even this very Bench has decided this issue in Hyderabad Power Installations Pvt Ltd Vs CCE, C & ST, Hyderabad-II (Final Order No. A/30489/16 dated 23.05.2016). The relevant portion of the order is reproduced below:
The appellant is registered with the Service Tax Department. On verification of records it emerged that the appellant had entered into contract agreements with Power Distribution/Transmission Companies which involved supply of material, erection and installation of sub-stations, related lines, installation of transformers and other electrical equipments etc. They also provided their land under lease agreement to a business organisation and received payment to that effect. The department entertained the view that the appellant has provided taxable services under the category of Erection Commissioning or Installation Services (ECIS) and Renting of Immovable Property Services, however, have neither disclosed these facts to the Department nor discharged appropriate service tax liability thereon.
2. In adjudication proceedings, service tax demand of Rs. 60,68,455/- was confirmed on services rendered under the category of ECI Services. Demand of Rs. 4,91,145/- was confirmed on services rendered under the category of Renting of Immovable Property. Hence this appeal.
3. The learned Counsel appearing for the appellant Shri R. Raghvendra Rao submitted that the challenge in this appeal is now limited to the demand, interest, penalty etc, confirmed under ECIS. He pointed out that the issue is no longer res integra as the same is settled in the following cases:
* Shri Ganesh Enterprises Vs CCE, Hyderabad-III [2014-TIOL-187-CESTAT-BANG] * K. Shanmugavelu Vs CCE, Mudurai [2014-TIOL-1325-CESTAT-MAD] * Kedar Construction Vs CCE, Kolhapur [2015 (37) S.T.R. 631 (Tri-Mumbai] * UP Rajkiya Nirman Nigam Ltd Vs CCE, Meerut [2015-TIOL-1485-CESTAT-DEL] * Elmech Enterprises Vs CCE, Hyderabad-III * [2015-TIOL-459-CESTAT-BANG]
4. We find that the appeal before us is more than amply covered by the above judgments. The relevant portion of the judgment in Elmech Enterprises case is reproduced below:
5. The Notification No. 45/2010-ST provides exemption to all taxable services relating to transmission and distribution of electricity by a person to another person during the relevant period covered by the proceedings. It is not limited only to taxable service of transmission by the transmission company as observed by the learned original adjudicating authority. Prima facie, I find that appellant is eligible for the benefit of Notification and therefore the appeal could have been heard without insisting on pre-deposit. Accordingly, the impugned order is set aside and the matter is remanded to the Commissioner (A) with a request to hear the appeal without insisting on any pre-deposit.
5. Similar view has been accorded in the other cited judgments also. Applying the dictum laid in the above judgments we find that the demand raised under ECIS is unsustainable and requires to be set aside, which we hereby do.
6. Following the ratio of the judgments supra, we find no infirmity in the impugned order and in consequence, dismiss the appeal filed by Department.
(Pronounced & dictated in open Court) (MADHU MOHAN DAMODHAR) (SULEKHA BEEVI C.S.) MEMBER(TECHNICAL) MEMBER(JUDICIAL) Jaya.
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