Page 191 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] HAJEE A.P. BAVA & CO. v. COMMR. OF C. EX. & SERVICE TAX, JAIPUR-II 109
tion of plants. The appellant had brought on record the specific
work orders issued for supply of cranes and mobilization/transport
of labour which would substantiate the case of the appellant that
the income from this activity was independent of and had no con-
nection with the amount received by the appellant for erection of
plants for which separate and specific work orders were issued.
There is no finding by the Commissioner on this aspect and it has
been assumed in the impugned order that the income from supply
of cranes and mobilization/transport of labour was a part of the
work order issued for erection of plants;
(iii) The confirmation of demand is based on Rule 5(1) of the 2006 Rules
which has been struck down by the Delhi High Court in Interconti-
nental Consultants & Technocrats Pvt. Ltd. v. Union of India [2013 (29)
S.T.R. 9 (Del.)] which decision was subsequently confirmed by the
Supreme Court in Union of India v. Intercontinental Consultants and
Technocrats Pvt. Ltd. [2018 (10) G.S.T.L. 401 (S.C.)];
(iv) The appellant had not suppressed any fact with an intent to evade
payment of Service Tax since the appellant was under a bona fide be-
lief that the income from independent activity cannot be taxed;
(v) The appellant had reflected the said income in the ST-3 Returns
with a declaration that it was exempted. This would adequately
show that the appellant had no intention to evade the payment of
Service Tax nor any fact was suppressed with a mala fide intention;
and
(vi) For similar reasons the penalty could not have been imposed upon
the appellant.
10. The Learned Authorised Representative of the Department has,
however, supported the impugned order and has submitted that in the absence
of any record to substantiate the case of appellant, the Commissioner was justi-
fied in concluding that the income of the appellant from supply of cranes and
mobilization/transport of labour was required to be added in the total taxable
income.
11. The submissions advanced by Learned Counsel for the appellant
and the Learned Authorized Representative of the Department have been con-
sidered.
12. The show cause notice dated 20 April, 2010 included an amount of
Rs. 83,09,388 for the period 2004-05 to 2006-07 and Rs. 5,50,83,066 for the period
2007-08. The impugned order holds that the Service Tax demanded for the peri-
od 2004-05 would be barred by limitation and thus Service Tax of Rs. 1,16,127/-
raised for an amount of Rs. 14,51,584/- pertaining to the period 2004-05 has not
been confirmed.
13. The issue that arises for consideration in this appeal is whether the
appellant was liable to pay Service Tax on the income derived from supply of
cranes and mobilization/transport of labour. The contention of the appellant is
that it is primarily engaged in the erection of plants, though it occasionally also
supplies cranes and mobilizes/transports labour. The case of the appellant is that
for erection of plants, specific work orders are issued, but when a client requires
cranes or labour, different work orders are issued and, therefore, the income de-
rived from these separate work orders cannot be clubbed with the income de-
GST LAW TIMES  2nd July 2020  191