9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (11) TMI 103 - AT - Service TaxValidity of SCN - Invocation of Extended period of Limitation - validity of SCN - present is third SCN, earlier two SCN also invoked extended period of limitation - Invocation of Extended period of Limitation - Business Auxiliary Service - providing services in relation to material handling, loading, unloading, providing trailers, low bed trollies, tractor trollies, tractor cranes, erection commissioning installation of plant machinery with requisite manpower to Nestle - providing Maruti Van Tata 407 to M's Nestle to carry purchases from outside the factory - HELD THAT - In the present case show cause notice was issued on 29.09.2008 for the period April, 2003 to December, 2005 demanding service tax on various activities carried out at the premises of M/s Nestle India Ltd. and Maruti Van tata 407 for carrying out activities of purchase. The said activity carried by the appellant for Nestle India Ltd were very much within the knowledge of the department for which earlier show cause notice was issued on 22.11.2001 for the period April, 2000 to March, 2001 and the second show cause notice was issued on 19.03.2007 for the period 01.01.2006 to 30.09.2006 - the said show cause notice was set aside by the Tribunal vide its order dated 24.05.2011, therefore, the present show cause notice invoking the extended period of limitation is completely barred by limitation as held in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP 2006 (4) TMI 127 - SUPREME COURT by the Hon ble Apex Court. As far as the merits of the case are concerned, as per the various agreements which are produced on record, low bed trollies with tractors proved with drivers to run within the factory, tractor crane with driver run within the factory of M/s Nestle do not fall in the category of Business Auxiliary service rather it falls under supply of tangible goods service which was made taxable w.e.f. 16.05.2008. We also find that various works carried out for M/s Nestle India Ltd. value wise certificate for the period in question has been provided by Nestle India Ltd. which is at page 41 of appeal memo. But the said certificate was not considered by both authorities below - The said certificate clearly gives the nature of the work carried out by the appellant and the amount paid by the Nestle to the appellant. This issue is clearly held in favour of the appellant in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX, HALDIA COMMISSIONERATE VERSUS M/S. INDUSTRIAL HANDLING 2021 (12) TMI 526 - CALCUTTA HIGH COURT wherein it has been held that when the tangible goods are supplied along with operators on monthly hire basis without transferring right of possession and effective control then the same was covered under supply of tangible goods services as introduces as introduced vide amendment to Finance Act w.e.f. 16.05.2008 and not under business auxiliary service. Pickup Van Tata 407 - Maruti Van - HELD THAT - The same were provided to M/s Nestle India for purchase of goods and during hiring of vehicle, possession control was with the appellant and repair maintenances were also with the appellant, hence, the activity do not fall under Rent-a-cab service - Identical issue was considered by the Tribunal in the case of RAHUL TRAVELS, DEEPAK TRANSPORT BUS SERVICE AND ANAY TOURS TRAVELS VERSUS COMMISSIONER OF CENTRAL EXCISE NAGPUR / PUNE III AND COMMISSIONER OF CENTRAL EXCISE NAGPUR / PUNE II VERSUS V-LINK TOURS AND TRAVELS PVT. LTD. TRAVEL LINK 2016 (11) TMI 1294 - CESTAT MUMBAI wherein the Tribunal held that when the cars and Buses are given in hiring as contract carriage on payment basis on their usage as per kilometer basis though possession with repair and maintenance remained with the owner, the same is not taxable prior to 01.01.2007 either under Rent-a-Cab service or under Tour Operator service. The impugned order is bad on merits as well as on limitation and is set aside - appeal allowed.
Issues involved:
The issues involved in the judgment are the demand of service tax on various activities carried out by the appellant for a company without obtaining Service Tax Registration, the sustainability of the impugned order, and the applicability of different categories of services for the activities performed. Demand of Service Tax: A show cause notice was issued to the appellant for providing services without obtaining Service Tax Registration, including 'Cargo handling Services', 'BAS', 'Manpower Recruitment & Supply Agency Service', and 'Erection Commissioning & Installation Services'. The appellant received an amount from the company involving service tax, which was demanded in the notice. The Adjudicating Authority confirmed the demand of service tax, interest, and penalty. The appellant appealed against this order, which was rejected by the Commissioner, leading to the present appeal. Sustainability of the Impugned Order: The appellant argued that the impugned order was not sustainable as it did not properly appreciate the facts and binding judicial precedents. The appellant provided various services to the company under written contracts, and previous show cause notices had been issued for similar activities. The appellant contended that the present show cause notice, invoking the extended period of limitation, was barred by limitation based on previous knowledge of the department. Legal judgments were cited to support this argument. Applicability of Different Categories of Services: The appellant argued that the activities performed did not fall under 'Business Auxiliary Service' but rather under 'supply of tangible goods service'. Various agreements and certificates were produced to support this claim. Legal precedents were cited to establish that the activities were taxable under specific categories introduced at a later date. The possession, control, and maintenance of vehicles provided for carrying out activities were also highlighted to demonstrate that they did not fall under Rent-a-cab service. Judgment Summary: The Tribunal found that the show cause notice demanding service tax for the period in question was barred by limitation as earlier notices had been issued for similar activities. The activities performed by the appellant were within the knowledge of the department, and the impugned order was set aside based on legal precedents regarding limitation periods and knowledge of authorities. The Tribunal also held that the activities did not fall under 'Business Auxiliary Service' but under 'supply of tangible goods service'. The certificates provided by the company were not considered by the authorities, and based on legal judgments, the impugned order was deemed erroneous both on merits and limitation grounds. Consequently, the appeal of the appellant was allowed with consequential relief, if any, as per law.
|
