9911796707
TMI Blog2011 (12) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices relating to manufacturing activity are of altogether different nature The appellants' activity, however, prima facie became taxable w.e.f. 1.4.2008 under supply of "Tangible Goods Service" as defined under section 65 (105)(zzzzj). But, even if the appellants activity is treated as taxable as "Supply of Tangible Goods Service" under section 65(105)(zzzzj) the service tax demand of Rs. 18,65,646/- for the period from 1.4.2008 to 31.3.2009 would be sustainable - Decided in favor of the assessee by way of direction to deposit Rs. 12 lakhs - 160-161/ 2011 - ST/S/128-129/ 2012 - Cus. - Dated:- 5-12-2011 - Mrs. Archana Wadhwa, Rakesh Kumar, JJ. M.P. Singh for the Appellant. K.K. Jaiswal for the Respondent. ORDER Rakesh Kumar, Technical Member The appellant are manufacturer of Oxygen, Nitrogen and Carbon Di-oxide gases chargeable to Central Excise duty under Chapters 28 and 29 of Central Excise Tariff. They also have registration for payment of service tax as deemed service provider, as they receive service of Goods Transport Agency in respect of which they are liable to pay service tax as service recipient. The department has alleged that during the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in any case substantial portion of duty demand for the period 1.5.2006 to 31.6.2008 raised by show cause notice dated 5.10.2009 is time barred, as there is absolutely no justification for invoking longer period under section 73(1) of Finance Act, 1994 for the reason that there was no justification for making allegation of willful suppression of facts, mis-statement etc. with intent to evade payment of tax, against the appellant; that the Appellant have strong prima facie case in their favour, and that in view of this, the requirement of pre-deposit of service tax demand, interest and penalty may be waived for hearing of the appeal and recovery thereof may be stayed during pendency of appeals. 4. Shri K.K. Jaiswal, learned SDR opposed the stay application by reiterating the findings of the Commissioner (Appeals) in the impugned order and emphasized that service being provided by the appellant to their client is covered by the definition of "Infrastructure Support service" as given in Section 65(104c) of the Finance Act, 1994, and thus the appellants' activity is taxable as "Business Support Service" under Section 65(105)( zzzq ) of the Finance Act, 1994. He, therefore, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stic, customer relations, accounting and processing of transactions, formulation of customer service and pricing policy, infrastructure support service etc. which are the supporting services required for the main business -manufacturing, service or trading. Even the inclusive portion 1 of the definition of "Infrastructure support service", as given in the Explanation specifically covers only the services relating to office infrastructure. Moreover, in accordance with the principle of Noscitur a Sociis , the expression - "Services in relation to business or commerce" in the definition of "Support Service of Business or Commerce" in Section 65 (104c) would get its colour from the inclusive portion, which covers the supporting services for operating a business - manufacturing, service or trading - like the services relating to marketing operations, customer relationship, logistics, office infrastructure etc. 5.2 Hon'ble Supreme Court in Paras 58 to 77 of its judgment in the case of Godfrey Phillips India v. State of U.P . AIR 2005 SC. 1103, while considering the question as to whether the Entry 62 List II of 7th Schedule to the Indian Constitution - "taxes on luxuries includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivatively and recently used to connote an article of luxury. One can assume that the coupling of these taxes under one entry was not fortuitous but because of these common characteristics. 70. Where two or more words susceptible of analogous meaning are clubbed together, they are understood to be used in their cognate sense. They take, as it were, their colour from and are qualified by each other, the meaning of the general word being restricted to a sense analogous to that of the less general. As said in Maxwell on the Interpretation of Statues 12th Edn. P.289. "Words, and particularly general words, cannot be read in isolation; their colour and their content are derived from their context ." 71. Put in other words the included words may be clarificatory or illustrative of the general word. Thus in U.P. State v. Raja Anand [1967] 1 SCR 362, while construing Art. 31A(2) as enacted by the Constitution (Seventeenth Amendment) Act, 1964 the relevant excerpt of which read as:- "31A(2) In this article ( a ) the expression 'estate' shall in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort is doubtful; but, where the object of the Legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service", (p.614) 73. We do not read this passage as excluding the application of the principle of noscitur a sociis to the present case since it has been amply demonstrated with reference to authority that the meaning of the word "luxury" in Entry 62 is doubtful and has been defined and construed in different senses. 74. In Black Diamond Beverages v. Commercial Tax Officer [1998] 1 SCC 458, the definition of 'sale price' with respect to notified commodities under section 2(d) of the West Bengal Sales Tax Act, 1954 was sought to be restricted with reference to the specific inclusion of sums charged for containers etc. The argument was that since freight charges were not expressly included they must be taken to have been excluded from the "sale price'. In that context this Court said that the inclusive part of the definition cannot prevent the main provision from receiving its natural meaning and that according to the natural meaning 'sale price' included freight charges. It was said that by the inclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember of society and not articles of luxury.' 5.3 We are of prima facie view that the ratio of the above mentioned judgment of the Apex Court is applicable to this case, and therefore, the expression "Services in relation to business or commerce" in the definition of "support service, of business or commerce" in section 65(104c) would get its colour from the inclusive portion of the defintion. On this basis we are of prima facie view that the expression "support service of business or commerce" would cover only the services of supporting nature for the main business, manufacture, trading or services like services relating to marketing, customer relationship, distribution and logistics, accounting and transaction processing, office infrastructure, etc. and would not include service of renting of machinery and equipment for production or manufacture which being services relating to manufacturing activity are of altogether different nature. 6. The appellants' activity, however, prima facie became taxable w.e.f. 1.4.2008 under supply of "Tangible Goods Service" as defined under section 65 (105)(zzzzj). But, even if the appellants activity is treated as taxable as "Supply ..... X X X X Extracts X X X X X X X X Extracts X X X X
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