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TMI Blog2015 (11) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... , service tax cannot be demanded from the appellant. Nevertheless it has to be appreciated that this is a mistake on the part of the appellant since they were liable to pay the tax but did not pay. However, remedy would lie in imposition of penalty for contravention of relevant provisions but not recovery of service tax. In this case penalty has been imposed on the ground that service tax was not paid and not for mere contravention of provisions. Demand for CENVAT credit of service tax of ₹ 7,54,47,488/ - Revenue contends that credit disallowed only on ground that port officer did not issue any invoice in name of appellant but had issued only an acknowledgement which is not a proper document - Held That:- If challan contains all details which are mentioned by appellant, credit is admissible and demand for more than ₹ 7.54 crores being CENVAT credit cannot be sustained. Demand of CENVAT credit of ₹ 6,60,545/- - Health service, insurance and motor vehicles, rent-a-cab service, works contract service and services in relation to 7th berth - Held That:- Provision of health care within port area where accident can take place cannot be said to be having no nexus to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, appellants were given permission to build and operate existing berths as well as develop and operate additional berths, to perform related operational, maintenance and management of common facilities. Clause 2.25 of the agreement defines premises given on lease which includes land, all structures and facilities constructed, land reclaimed by the appellant and all facilities and structures constructed or provided by the appellants, etc. The appellants collect the revenue for the port services rendered by them and handover the share of the GOAP. There is no dispute on the fact nor is there any finding to the contrary that GOAP has discharged service tax liability on the amount received by them. However, the demand has arisen because the Revenue has taken a stand that appellant should pay service tax in terms of Notification No.30/2012-ST under reverse charge mechanism. The demand has been made treating the service as Business Support Service under Section 65(104c) of the Finance Act, 1994 and Section 65(105zzzq). 4.1 First submission on behalf of the appellant was that during the period of dispute 1.7.2012 to 31.3.2013, Section 65 ceased to exist/apply vide Notification No.12/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Support Services of Business or Commerce means services provided in relation to business or commerce and includes evaluation of prospective customers, telemarketing, processing of purchase orders and fulfilment services, information and tracking of delivery schedules, managing distribution and logistics, customer relationship management services, accounting and processing of transactions, operational assistance for marketing, formulation of customer service and pricing policies, infrastructural support services and other transaction processing. Explanation For the purposes of this clause, the expression infrastructural support services includes providing office along with office utilities, lounge, reception with competent personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security; Section 105(zzzq) defines taxable service as taxable service provided or to be provided to any person, by any other person, in relation to support services of business or commerce, in any manner; The definition of support services as per Section 65B(49) reads as under: (49) Support services means infrastructural, operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of introduction of negative list and the amendment of Finance Act, both GOAP and the appellant did not take note of the provisions and consequently GOAP continued to pay tax. The question that arises is whether in a situation like this where service provider viz., GOAP has paid the tax even though not liable to pay the same can again be demanded from the appellant. Since taxable event is one and the same, there cannot be levy of service tax twice. Therefore we find ourselves in agreement with the submission that once the service provider has paid the tax under reverse charge mechanism, service tax cannot be demanded from the appellant. Nevertheless it has to be appreciated that this is a mistake on the part of the appellant since they were liable to pay the tax but did not pay. However, remedy would lie in imposition of penalty for contravention of relevant provisions but not recovery of service tax. In this case penalty has been imposed on the ground that service tax was not paid and not for mere contravention of provisions. 4.5 Under the circumstances discussed above, we find that the demand for service tax of more than ₹ 5.88 crores cannot be sustained. 5. Deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b service, works contract service and services in relation to 7th berth. 6.1 It was submitted that health care with ambulance facility would be available within the port area and this being a mandatory requirement, the appellant tied up with Apollo Hospital, Kakinada. We find that provision of health care within the port area where accident can take place cannot be said to be having no nexus to the port service, therefore the credit of ₹ 83,430/- is admissible. 6.2 As regards insurance, it is submitted that it is a mandatory obligation to insure all vehicles used within the port area in relation to port services. We agree that credit is admissible and therefore held that amount of ₹ 29,558/- demanded on this ground cannot be sustained. 6.3 As regards rent-a-cab service, it was submitted that it was not for personal use but for movement of authorities in providing port service. In the absence of any specific finding to the contrary, credit of ₹ 18,688/- has to be held as eligible. 7. It was submitted that an amount of ₹ 2,82,038/- as CENVAT credit has been denied on the ground that it was taken on construction service. However, it was submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010-ST on 28.6.2010. 9.1 It was submitted that the Notification was no longer in existence when the appellants availed the credit; the activities of the service provider were apparently found to be not eligible for exemption and thirdly for the appellant it was an input service. 9.2 We find that it is settled law that whether a service was liable to tax or not or is eligible for exemption cannot be determined by the receiver of service. What is required to be examined at the receiver s end is only the question as to whether the receiver of service had received the service; utilized the service for providing output service; had maintained proper records and the documents were in accordance with law and had paid the tax. 9.3 Here the CENVAT credit is proposed to be denied on the ground that the service provider was eligible for exemption. On this ground denial cannot be sustained. 10. The above observations would show that except for imposition of penalty for contravention of provisions by both the sides, no case is made out for Revenue on any other ground. In the absence of any imposition of penalty for contravention of specific provision in not making payment under reve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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