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TMI Blog2017 (2) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... batement under notification no. 1/06-ST dated 1.3.2006, in respect of "Mandap Keeper Service" is also a matter of dispute. The appeals covered the period from 2005-06 to 2011-2012. The service tax demands of Rs. 3,44,45,613/- under "Business Auxiliary Service" and Rs. 99,60,802/- under "Mandap Keeper Service" were confirmed by the Adjudicating Authority in the impugned orders. Various penalties under Section 76, 77 and 78 were also imposed. 2. Ld. Counsel for the appellant submitted that the appellant has wrongly availed cenvat credit of duty paid on inputs and input services and availed the abatement under notification no. 1/06-ST simultaneously. As such, they have reversed the whole disputed cenvat credit of Rs. 35,79,014/- along with interest of R.35,19,674/- on 20.09.2013. In view of the total reversal with interest of the credit availed, their claim for abatement under Notification no. 1/06-ST cannot be denied. Reliance was placed on the decision of the Hon'ble Supreme Court in Chandarpur Magnet Wires Pvt. Ltd. - 1996 (81) ELT 3 (SC) and the decision of the larger bench of the Tribunal in Franco Italian Co. Pvt. Ltd. - 2000 (120) ELT 792 (T-LB). It was also submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier proceedings against the appellant for denial of benefit under notification no. 1/06-ST on the same grounds for the year 2008. The present proceedings were for the period earlier to that. As such, repeat proceedings invoking extended period of limitation is not sustainable. Reliance was placed on the decision of the Hon'ble Supreme Court in Nizam Sugar Factory - 2006 (197) ELT 465 (SC). 4. Ld. AR contested the submissions of the appellant. He submitted that the appellants are managing and maintaining the various facilities at the premises of IHC. The terms of the contract indicate that they have to maintain the hospitality facility, promotion, publicity, advertisement, janitorial, cleaning services, security and valet services etc. This responsibility of the appellant has been clearly mentioned in the agreement dated 2.8.1997. As such, the services are correctly taxable under "BAS". Regarding the denial of exemption under notification no. 1/06-ST, it is submitted that during the material time, the appellants availed cenvat credit on inputs and services and as such, they are barred from claiming the said exemption. 5. We have heard both the sides and perused the appeal rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent service tax liability is not relating to GOR, a fixed percentage out of which is received by the appellant. The service tax liability under the category of "BAS" is on certain expenses incurred by the appellant and which are reimbursed by IHC as part of the above said agreement. Annexure-Il to the said agreement lists out expenses to be reimbursed by IHC subject to a ceiling of 10% of GOR. These are relating to repair, maintenance, credit card service, security, valet service, marketing promotional and business development expenses, etc. Revenue's contention is that these services are provided by the appellant to various customers and accordingly, they are rendering service of BAS to IHC. We have noted that these expenses are obligated in terms of the agreement and are fully reimbursed by IHC on actual basis upto a ceiling of 10% of GOR. From the overall arrangement as seen from the agreement, both IHC and the appellant together are involved in providing various facilities available in the premises of IHC. The responsibility of each of the parties in the overall business is clearly mentioned in the agreement. The consideration each one will get for their responsibility i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement. 8. It is clear from the terms of the agreement that IHC and the appellants have undertaken the business activities together and shard the revenue in a fixed proportion. The obligation of each party has been listed out. The dealings are more like co-venture agreement with joint purpose and shared income. This is also emphasized by forming of committee for tariff and quality in which both the contracting parties are representatives. The appellants are providing working capital, staff and management skills to run the facilities. IHC owned the facilities and obtained necessary approvals, licenses, etc. Thus, the pooled resources for a mutual benefit, generated income, which was shared on percentage basis. While discharging one of the responsibilities the appellants reimbursed the expenses on actual basis. We find such arrangement is not liable to service tax under BAS. The overall scope of the agreement indicates that it is not for rendering of service by one to another. Rather a common pool of resources required for running and maintaining the facilities of IHC successfully was attempted in terms of the agreement and the gross revenue is also shared showing the common ..... X X X X Extracts X X X X X X X X Extracts X X X X
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