Custom, Excise & Service Tax Tribunal
M/S. A.K.Das Associates Ltd vs Commissioner Of Central Excise, ... on 19 January, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
SERVICE TAX APPEAL NO.ST/A/390/2012
(ARISING OUT OF ORDER-IN-ORIGINAL NO.COMMR/B-I/ST-08/2012 DATED 27.03.2012 PASSED BY COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUBANESWAR-I)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
DR. I.P.LAL, HONBLE TECHNICAL MEMBER
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 Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities ?
M/S. A.K.DAS ASSOCIATES LTD.
APPLICANT
VERSUS
COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUBANESWAR-I
...RESPONDENT
APPEARANCE:
SHRI S.C.MOHANTY, ADVOCATE FOR THE APPELLANT;
SHRI D.K.ACHARYA, SPECIAL COUNSEL FOR THE REVENUE.
CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER Date of Hearing & Decision:19.01.2015 ORDER NO.FO/A/75099/2015 Per Dr. D.M.Misra This Appeal is filed by the Appellant against the Order-in-Original No.COMMR/B-I/ST-08/2012 dated 27.03.2012 passed by Commissioner of Central Excise, Customs & Service Tax, Bhubaneswar-I.
2. Brief facts of the case are that the Appellant are engaged in the business of providing services of Erection, Commissioning and Installation Services of Transmission Towers, Transformers, Switchyards, Drawing of Electrical Lines, Conitrol Panels, Construction of Electrical Sub-Stations etc., for transmission of electricity, to M/s. Orissa Power Transmission Corporation GRIDCO, M/s. Orissa Power Generation Corporation Ltd. and others. A show cause notice was issued to the Appellant on 19.10.2010, alleging that the services rendered by them were under the category of Commercial or Industrial Construction Services, Erection, Commission or Inatalation Services and works contract services under the Finance Act, 1994, for the period, 2005-06, 2006-07 and 2007-08. On adjudication, the ld. Commissioner confirmed the demand of Service Tax of Rs.4,96,83,879/- under Section 73(2) of the Finance Act, 1994, and imposed penalty of equal amount under Section 78 of the said Act.
3. At the outset, ld. Advocate, Shri S.C.Mohanty for the Appellant, has categorically submitted that the services rendered by the Appellant during the period in disputed relate to Transmission and distribution of Electricity. He submits that by virtue of Notification No.45/2010 dated 20.07.2010, the Central Government in exercise of the power conferred under Section 11C of the Central Excise Act, 1944, read with Section 83 of the Finance Act, 1994, directed that no service tax shall be required to be paid in respect of taxable services relating to transmission and distribution of electricity for the period up to 21.06.2010. He further submits that the period in the present Appeal is covered under the period specified in the said Notification. Further, he submits that this Tribunal in the case of M.P.Power Transmission Co. Ltd. vs. CC & CE, Bhopal, 2011(24)STR 67(Tri.-Del.), Purvanchal Viduyt Vitaran Nigam Ltd. Vs. CCE,Allahabad 2013(30) STR 259(Tri.-Del.) & Shri Ganesh Enterprises Vs. CCE& ST Hyderabad 2014-TIOL-187-CESTAT-BANG had allowed the Appeal filed by the Appellant-assessee therein, in view of the said Notification No.45/2010ST, dated 20.07.2010.
4. Ld. Special Counsel, Shri D.K.Acharya for the Revenue, even though did not dispute about the said Notification, however, referring to the judgment of the Honble Supreme Court in the case of CCE, New Delhi vs. Connaught Plaza Restaurant (P) Ltd., 2012 (286) ELT 321(SC), submitted that a Notification under Section 11C of the Central Excise Act, 1944, would not wipe out the liability of the pending proceedings against an assessee. However, on the direction of the Bench, he had referred the matter to the CBEC for necessary instruction.
5. He has fairly submitted that in its letter dated 25.08.2014, the OSD CBEC (Judicial cell ) has clarified and communicated that the observation of the Honble Supreme Court in the case of Connaught Plaza Restaurant (supra), cannot be inferred as a ruling/precedent as the subject matter was not that of exemption under Section 11C of CEA,1944 but that of classification of soft-serve as ice-cream and consequently, the Notification No.45/2010 dated 20.07.2010, would be applicable to all pending cases.
6. Heard both sides and perused the record. Undisputedly, we find that during the period in question, the Assessee-Appellant were undisputedly engaged in providing service relating to transmission and distribution of electricity. The claim of the Appellant-assessee is that by virtue of Notification No.45/2010 ST dt. 20.07.2010, no service tax is required to be paid by them for the period in dispute which is prior to 21.06.2010. The said Notification reads as:
Whereas, the Central Government is satisfied that a practice was generally prevalent regarding levy of service tax (including non-levy thereof), under section 66 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), on all taxable services relating to transmission and distribution of electricity provided by a person (hereinafter called the service provider) to any other person (hereinafter called the service receiver), and that all such services were liable to service tax under the said Finance Act, which were not being levied according to the said practice during the period up to 26th day of February, 2010 for all taxable services relating to transmission of electricity, and the period up to 21st day of June, 2010 for all taxable services relating to distribution of electricity;
Now, therefore, in exercise of the powers conferred by section 11C of the Central Excise Act, 1944 (1 of 1944), read with section 83 of the said Finance Act, the Central Government hereby directs that the service tax payable on said taxable services relating to transmission and distribution of electricity provided by the service provider to the service receiver, which was not being levied in accordance with the said practice, shall not be required to be paid in respect of the said taxable services relating to transmission and distribution of electricity during the aforesaid period.
[Notification No. 45/2010-S.T., dated 20-7-2010]
7. The said Notification has been interpreted by this Tribunal in the case of M.P.Power Transmission Co. Ltd. (supra) and later in the case of Noida Power Co.Ltd. Vs. Commissioner of C.Ex. Noida and the issue was decided in favour of the assessees. This Tribunal in Ganesh Enterprises case(supra) has held as:
3. It is however brought to our notice today that the Central Government by Notification No. 45/2010-ST dt. 20/07/2010, in exercise of powers conferred by Section 11 C of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994, granted immunity from the liability to remit service tax in respect of any taxable service provided in relation to transmission and distribution of electricity, during the period upto 26/02/2010. As consequence of this immunity Notification, the service tax liability of the petitioner for the several taxable services provided to electricity distribution companies of Andhra Pradesh during 01/04/2004 to 30/11/2009, stands eclipsed. On this premise, the appeal requires to be allowed and is accordingly allowed. The impugned adjudication order dt. 20/04/2011 is declared inoperative in the light of Notification No. 45/2010- ST dt. 20/07/2010. No costs.
8. We have no reason to disagree with the said decisions of the co-ordinate Bench of this Tribunal. Besides, in view of the clarification issued by the Board, the Appellant are eligible to the benefit of the said Notification. In the result, the impugned Order is set aside and the Appeal filed by the Appellant is hereby allowed.
(Operative part of the Order was pronounced in the court.)
SD/-19.02.2015 SD/-19.02.2015
(I.P.LAL) (D.M.MISRA)
TECHNICAL MEMBER JUDICIAL MEMBER
DUTTA/
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ST/A/390/2012
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