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TMI Blog2018 (2) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... packaging and hence they have admitted their liability to pay service tax on such activity - reliance placed in the case of COMMR OF C. EX & CUS., PATNA Versus ADVANTAGE MEDIA CONSULTANT [2008 (3) TMI 59 - CESTAT KOLKATA], where it was held that when no tax is collected separately, the gross amount has to be adopted to quantify the tax liability treating it as value of taxable service plus service tax payable - the cum tax benefit allowed. Penalty - Lease agreement - receipt of consideration towards lease rent - Held that: - the appellant w.e.f. that date has already started discharging the service tax liability under the above service and under the lease agreement. In the result, we are of the view that the service tax liability arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing undertaken by the appellant for M/s TATA Tea Ltd. was liable to service tax under the category of Packaging Service falling under Section 65 (105) (zzzf). Further, they were of the opinion that the lease agreement by which the appellant made premises available on lease to M/s TATA Tea Ltd. was nothing but a camouflage for receiving additional consideration for the activity of packing. Accordingly, by issue of show cause notice, the Department proceeded to demand service tax for the entire period under the category of packaging service. During the course of investigation, the appellant admitted their liability for payment of service tax on the activity of packing and towards this, they paid service tax amounting to ₹ 76,23,558/- af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, their only request is that the cum duty benefit should be extended to them. In this regard, he relied on the following case laws :- (i) CCE CUS, Patna vs. Advantage Media Consultant 2008 (10) S.T.R. 449 (Tri. Kolkata) ; (ii) Tuticorin Port Trust vs. CCE, Tirunelveli 2016 (42) S.T.R. 512 (Tri. Chennai) ; and (iii) Polaris Software Lab Ltd. vs. CCE, Chennai III vide final order No. 41418 of 2015 dated 29 September 2015. 7. After perusal of the decision of the Tribunal in the case of Advantage Media Consultant (supra), the Tribunal observed as under :- 3. Service tax is an indirect tax. As per this system of taxation, tax borne by the consumer of goods/services is collected by the assessee (manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputed that a separate lease agreement has been formally executed by the appellant with M/s TATA Tea Ltd. for giving their premises on lease. We note that the separate service of renting of immovable property has been included in the statute only w.e.f. 01/06/2007. We also note that the appellant w.e.f. that date has already started discharging the service tax liability under the above service and under the lease agreement. In the result, we are of the view that the service tax liability arises on the consideration received under the lease agreement only w.e.f. 01/06/2007 and the demand prior to this date is set aside. During the course of argument, learned Consultant submitted that the service tax under rent of immovable property has alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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