9911796707
TMI Blog2013 (3) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case. - Demand set aside - Decided in favor of assessee. Regarding benefit of abatement availed alongwith Cenvat Credit - outdoor catering - held that:- appellant had not fulfilled the conditions stipulated to avail the benefit of abatement - the appellant had to pay Service tax in full without availing the benefit of abatement towards outdoor catering services for the surviving demand period w.e.f. 1-10-2007. - Decided against the assessee. - 109/2011 (MST) - - - Dated:- 29-6-2011 - Shri P. Ayyam Perumal, J. Shri N. Viswanathan and S. Janakiraman, Advocates, for the Assessee. None, for the Department. ORDER This is an appeal filed by M/s. Updater Services Private Ltd., No. 7-21, Sakthi Garden Street, D.B. Jain College Hostel Road, Off Mahabalipuram Road, Thoraipakkam, Chennai - 600 097 (hereinafter referred to as appellant), against the Lower Adjudicating Authority s Order-in-Original No. 94/2009 dated 9-12-2009. 2. Brief facts of the case are that the appellant are engaged in providing the following services: Maintenance or Repair Services, Business Auxiliary Services, Outdoor catering services, Cargo handling services, Security agency s services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nput services exclusively put into use by the appellant while rendering the output service of Outdoor Catering Service by virtue of which he ought to have seen reason to uphold the appellant s entitlement to abatement; (iii) that they had availed Cenvat credit of certain common input services utilized the same for their tax payment purpose had consciously agreed to the fact that the said credits were not utilized by them for payment of the tax on the outdoor catering services provided by them which fact is further corroborated by the fact on record indicating that the entire service tax credits taken by them including the common services without excluding the services specified under Rule 6(5) of the Cenvat Credit Rules fell much below the 20% permitted for utilization in terms of Rule 6(3) of the said Rules then existed and therefore ought not to have denied them the benefit of Notification No. 1/2006-S.T. which is grossly erroneous and unsustainable under law. 4. Personal hearing was held on 2-6-2011. S/Shri N. Viswanathan and S. Janakiraman, Advocates, appeared on behalf of the appellant. Despite intimation no one has appeared from the Department side. 4.1 During the hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be invoked in this case. Thus, the demand in the instant case is partly hit by limitation of time and the period w.e.f 1-10-2007 alone will survive as it is within a period of one year from the relevant date. 6.1 Non-payment of Service tax on cleaning services rendered to the Child Trust Hospital : The appellant s main contention is that the Child Trust Hospital is a non-commercial organisation and the services rendered to them are not taxable. They further argued that the Income-tax Department had given approval under Section 80G of the Income-tax for, Deduction in respect of donations made to Child Trust Hospital. They relied on Circular No. 80/10/2004, dated 17-9-2004. They had been paying service tax on the same services. They stopped paying service tax w.e.f. 1-8-2005 consequent to the Circular F. No. 81/6/2005/TRU, dated 27-7-2005 wherein it has been clarified that cleaning services in respect of non-commercial building and premises thereof would not be covered within the purview of service tax. As per Section 65(24b) of the Finance Act, 1994 cleaning activity means :- (24b) cleaning activity means cleaning, including specialised cleaning services such as disi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts the catering service from 50% of the Service tax leviable thereon under Section 66 of the Finance Act and the subject notification shall not apply in cases where,- (i) the CENVAT credit of duty on inputs or capital goods or the CENVAT credit of Service tax on input services, used for providing such taxable service has taken under the provisions of the CENVAT Credit Rules, 2004; or (ii) the service provider has availed the benefit under the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 12/2003 -Service tax, dated 20-6-2003. To avail the benefit of abatement, the appellant has to necessarily fulfil the conditions stipulated under the said notification. I find from the records that the appellant had availed Cenvat credit on common input services which is not a disputed fact. As the appellant had not fulfilled the conditions stipulated to avail the benefit of abatement under said notification, I hold that the appellant had to pay Service tax in full without availing the benefit of abatement towards outdoor catering services for the surviving demand period w.e.f. 1-10-2007. 6.3 With regard to the penalties imposed by the Lower ..... X X X X Extracts X X X X X X X X Extracts X X X X
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