CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL NEW DELHI PRINCIPAL BENCH-COURT NO. 4 SERVICE TAX APPEAL NO. 50124 OF 2018 [Arising out of Order in Appeal No. BHO-EXCUS-002-APP-235-17-18 dated 26.09.2017 passed by the Commissioner (Appeals) Central Excise & Customs, Raipur]

M/S BALAJEE STRUCTURAL INDIA LTD ....APPELLANT Ring Road No. 2, Tatibandh, Raipur (C.G.)

Vs.

COMMISSIONER OF CENTRAL EXCISE &

....RESPONDENT SERVICE TAX-RAIPUR (C.G.)

Central Excise Building Dhamtari Road, Tikrapara Raipur, Chhatisgarh-492001 Appearance:

Shri Ankur Upadhyay, Advocate for the Appellant Shri Aejaz Ahmad, Authorised Representative for the Respondent CORAM:

HON'BLE DR. RACHNA GUPTA, MEMBER ( JUDICIAL )

HON'BLE MR. P. V. SUBBA RAO, MEMBER ( TECHNICAL )

FINAL ORDER NO. 50815 /2025 DATE OF HEARING : 27/03/2025 DATE OF DECISION: 02/06/2025 P.V. SUBBA RAO

1. M/s. Balajee Structural India Ltd.¹ filed this appeal to assail the Order-in-Appeal dated 26.9.2017² passed by the Commissioner (Appeals), Raipur in which he upheld the order-in- original dated 17.12.2016³ passed by the Assistant Commissioner

1 Appellant

2 Impugned order

3 OIO

and dismissed the appellant’s appeal. In the OIO, the Assistant Commissioner confirmed demand of service tax of Rs. 1,12,171/- on the appellant under the proviso to section 73(1) of the Finance Act, 1994⁴ along with interest under section 75 of the Finance Act and imposed penalties under sections 77 and 78 of the Finance Act.

2. The appellant is registered with the service tax department under the category of “Goods Transport Agency Service”. Its records for the period 2012-13 and 2013-14 were audited and it was found that the appellant transported goods for Jakodia Minerals, Raipur and it charged them Rs. 200/- per metric ton per trip. It used the services of Bhupesh Kumar Agrawal for the purpose of paying him only Rs. 140/- per metric ton per trip. Since service tax on GTA services were to be paid by the recipient of the service, the appellant paid service tax on the amount which it had paid to its sub-contractor Shri Bhupesh Kumar Agarwal. Audit formed an opinion that the profit of Rs. 60/- (Rs.200- Rs.140) which the appellant had earned is chargeable to service tax as “Business Auxiliary Service” under section 65(19) and as service not under negative list under section 65B (44) after 1.7.2012. Accordingly, a Show Cause Notice dated 21.9.2016⁵ was issued to the appellant demanding service tax on the difference between the amounts which the appellant had collected from its client Jakodia Minerals and the

4 Finance Act

5 SCN amounts which it had paid to its sub-contractor Bhupesh Kumar Agarwal treating it as consideration for providing ‘Business Auxiliary Service’ before 1.7.2012 and as a service not under negative list after 1.7.2012. Interest was also proposed to be demanded on the service tax and penalties under section 76,77 and 78 were proposed.

3. The appellant resisted the proposals in the SCN which were, however, confirmed by the Assistant Commissioner in his order dated 17.12.2016 the operative part of which is as follows:

ORDER

“(i) I confirm the demand of service Tax amounting to Rs. 112171/- (S.Tax Rs.108904/-(+) Edu. Cess Rs; 2178/-(+) SHE Cess Rs.1089/-) (Rs. One Lac twelve thousand one hundred and seventy one only) which should be recovered from the noticee under proviso to Section 73(1) read with section 73(2) of the Finance Act, 1994, (ii) I confirm the demand of interest at appropriate rate which should be charged and recovered from the noticee under the provision of Section 75 of the Finance Act, 1994 on the amount adjudged payable.

(iii) I do not impose any penalty under Section 76 of the Finance Act 1994;

(iv) I impose a penalty of Rs. 10,000/- (Ten thousand only) on the notice under Section 77 of the Finance Act 1994 for contravening the provisions the Finance Act 1994 and (v) I impose a penalty of Rs. 56,085/- (Rs. Fifty six thousand and eighty five only) on the noticee under the Section 78 of the Finance Act 1994 for