ST - Subject line has come from private publication, however, for purpose of consideration of exemption, text of notification was considered - no error apparent on record: CESTAT
By TIOL News Service
MUMBAI, APR 11, 2019: THE assessee is providing ‘Erection, Installation and Commissioning Services'. Alleging that they had not paid Service Tax on the bills issued to M/s MSEDCL, the same was demanded for the period 2007-08 to 2012-13 totalling Rs.61,60,288/-. The benefit of notification 1/2006-ST was extended in those cases where the services were provided with material.
The Commissioner, Aurangabad dropped the Service Tax demand of Rs.59,53,475/- for the period 01.10.2007 to 30.06.2012 on the ground that retrospective exemption notification(s) were issued by the Government of India. Nonetheles, the demand of Rs.2,06,813/- for the period 01.07.2012 to 30.09.2012 was confirmed and the same was appropriated from the amount of Rs.25,38,793/- paid by the assessee during investigation.
Unhappy with the dropping of the demand by citing the retrospective exemption, Revenue went in appeal before the CESTAT.
The Bench held-
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Vide exemption notification 11/2010-ST dated 27.02.2010, all services provided by any person to any other person (who may be an Electricity Distribution Company or not) for transmission of electricity were exempted - however, since distribution of electricity was not covered, another notification 32/2010-ST dated 22.06.2010 was issued exempting the same - moreover, vide notification 45/2010-ST dated 20.07.2010, the services in respect of which exemption has been given by the aforesaid notifications 11/2010-ST and 32/2010-ST were given retrospective effect by invoking section 11C of the CEA, 1944 r/w section 83 of the FA, 1994 - therefore, even for the period prior to the date of issuance of the said two notifications, no tax was required to be paid in respect of these services - however, notification 11/2010-ST and 32/2010-ST have been rescinded by notification 34/2012-ST dated 20.06.2012 (w.e.f 01.07.2012) and service tax is payable from the said date - Revenue appeal is, therefore, dismissed: CESTAT [para 5.1, 5.2, 5.3, 6, 10]
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We reported this case as - 2018-TIOL-3848-CESTAT-MUM .
Revenue is again before the CESTAT, this time with an application seeking rectification of an alleged apparent mistake in the said order dated 16.07.2018.
It is the contention of the Revenue that the "subject line" given to the notification 11/2010-ST that was extracted by the Bench is incorrect.
Inasmuch as whereas the Tribunal had in paragraph 5.1 of its order mentioned the subject line as "Regarding exemption to the taxable service provided for distribution of electricity" the same actually should have read ""Seeks to exempt the taxable service provided in relation to transmission of electricity."
And, therefore, the Notification No 11/2010-ST dated 27.02.2010 deals with the exemption of the taxable service provided in relation to transmission of electricity and not regarding exemption to the taxable service provided for distribution of electricity as mentioned in Para 5.1 of the Tribunal's Order No A/87075/2018 dated 16.07.2018 - 2018-TIOL-3848-CESTAT-MUM.
That, therefore, the CESTAT on wrong footing relied upon Notification No 11/2010-ST and extended benefit of Notification No 11/2010-ST to the assessee which is in r/o services in relation to transmission of electricity to the assessee, when the assessee in question have provided services to M/s MSEDCL, a electricity distribution company.
And this is the mistake that the Revenue pleads the CESTAT should correct.
The AR further submitted that in para 8 (of the CESTAT order), the reference made to decision of CESTAT in case of M/s Kedar Construction - 2014-TIOL-2138-CESTAT-MUM, is incorrect as the para 6 of the judgment reproduced in the para below does not figure in the said decision and, therefore, the order should be recalled.
Incidentally, none represented the respondent assessee.
The Bench considered the submissions made in the application and those made during the course of arguments and observed thus -
++ The text of notification as 11/2010-ST as available on the website of Central Board of Indirect Tax (Formerly Central Board of Excise and Customs) and also on the website indiabudget.gov.in, do not contain any subject.
++ The subjects indicated have come from the various private publication.
++ However for the purpose of consideration of the exemption contained in the notification the text of Notification is considered and for that reason we do not find any error apparent on record on this account in the order.
++ However the subject "Regarding exemption to the taxable service provided for distribution of electricity." mentioned in the para 5.1 of the order after "NTF. NO. 11/2010-ST, DT. 27/02/2010" is deleted to align the notification as reproduced in the order with the notification as it is available on the above mentioned official websites.
++ We also agree with the submissions made by the Authorized Representative with regards to the wrong reference to decision of tribunal in case of Kedar Constructions in para 8.0. The para 6.0 quoted in the said para is from the order of tribunal in case of "Commissioner of Central Excise Kolhapur vs G B Desai & Saurabh Construction - 2018-TIOL-1656-CESTAT-MUM". We accordingly amend the said reference to the case of M/s Kedar Constructions in para 8, with this citation.
Concluding that the Bench does not find any reason for recall of the order on the said count, the ROM application was disposed of in the manner aforesaid.
(See 2019-TIOL-1022-CESTAT-MUM)
