Page 76 - GSTL_30th April 2020_Vol 35_Part 5

562 GST LAW TIMES [ Vol. 35
cause notice could not have been issued - Demand, not sustainable - Section
65(19) of Finance Act, 1994. [para 22]
Demand - Business Auxiliary Service (BAS) - Deployment of officers
in JV company - Expenses towards deputation of employee recovered by as-
sessee on actual basis from JV company - Activity cannot be categorized under
BAS - Even otherwise deputation of employee in JV company cannot be held
to be service - Section 65(19) of Finance Act, 1994. [paras 23, 24]
Demand - Limitation - Invocation of larger period - Acquiring of land
on behalf of JV company, known to Department before issue of show cause
notice - Entire issue of non-transfer of land to JV company, taken by Govern-
ment of India and by State of Rajasthan, subsequent to acquisition of land, to
be considered only as change of opinion in subsequent periods - Therefore, no
case of suppression of facts, so as to invoke larger period of limitation, made
out - Also, intent to evade payment of duty, which is sine qua non for invok-
ing proviso under Section 73A of Finance Act, 1994, not apparent from record -
Demand time-barred - Section 73A of Finance Act, 1994. [para 25]
Appeal allowed
CASES CITED
Commissioner v. Ashok Singh Academy — 2010 (17) S.T.R. 363 (Tribunal) — Referred ............. [Para 14]
Commissioner v. Chate Coaching Classes Pvt. Ltd.
— 2016 (46) S.T.R. 674 (Tribunal) — Referred ........................................................................... [Para 14]
Commissioner v. Consulting Engineering Services (I) Pvt. Ltd.
— 2013 (30) S.T.R. 586 (Del.) — Referred .................................................................................... [Para 14]
Commissioner v. Krishna Coaching Institute — 2009 (14) S.T.R. 18 (Tribunal) — Referred ........ [Para 14]
Commissioner v. Mormugao Port Trust — 2018 (19) G.S.T.L. J118 (S.C.) — Relied on ................. [Para 22]
DLF Commercial Project v. Commissioner — 2019 (27) G.S.T.L. 712 (Tri. - Chan.) — Relied on [Para 18]
Franco Indian Pharmaceutical Pvt. Ltd. v. Commissioner
— 2016 (42) S.T.R. 1057 (Tribunal) — Relied on ........................................................................ [Para 23]
Greater Noida Industrial Development Authority v. Commissioner
— 2015 (40) S.T.R. 95 (All.) — Referred ...................................................................................... [Para 13]
Mormugao Port Trust v. Commissioner — 2017 (48) S.T.R. 69 (Tribunal) — Relied on ........ [Paras 19, 22]
Punj Lloyd Ltd. v. Commissioner — 2019 (22) G.S.T.L. 85 (Tribunal) — Relied on ....................... [Para 23]
RIICO Ltd. v. Commissioner — 2018 (10) G.S.T.L. 92 (Tribunal) — Referred ................................ [Para 13]
Vistar Construction Pvt. Ltd. v. Union of India — 2013 (31) S.T.R. 129 (Del.) — Referred ........... [Para 14]
REPRESENTED BY : Shri Vishal Agarwal, Advocate, for the Appellant.
S/Shri Vivek Pandey and G.R. Singh, Authorised
Representatives, for the Respondent.
[Order per : Bijay Kumar, Member (T)]. - The present appeal is filed by
the appellant against Order-in-Original dated 30-4-2015 by which a demand of
Rs. 122.30 crore including Education Cess and Higher Education Cess along with
equivalent amount of penalty has been confirmed, under Section 65(105)(zzz)
and Section 65(105)(zzb) of Finance Act, 1994 (‘Act’ for short). The appellant have
allegedly provided services to M/s. Barmer Lignite Mining Company Limited
(‘BLMCL’ for short) during the periods 2008, 2009 to 2012-13.
2. Briefly stated the facts of the case are that the appellant is Govern-
ment of Rajasthan Undertaking formed under Companies Act, for development
and extracting mines and minerals, etc., in the State. Considering the acute pow-
er shortage in the State of Rajasthan, a policy decision was taken to set up ther-
mal power plant, with Private Public Participation, and for which a bid was
GST LAW TIMES  30th April 2020  76