9911796707
TMI Blog2019 (8) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 88633 of 2018 - A/86440/2019 - Dated:- 22-8-2019 - DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Vinod Awtani, C.A. for the Appellant Shri Sudhir B. Mane Asst. Commissioner, Authorised Representative for the Respondent ORDER SUVENDU KUMAR PATI: Demand of duty of ₹ 14,11,029/- for the period between 2009 and September 2013 against appellant for not maintaining separate records for trading spare parts of helicopter and sale of scrape, being considered as exempted service, but availing entire CENVAT credits on inputs is assailed in this appeal. 2. Factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration. Therefore, such act of appellant could be treated as clearance of input as such and not trading of goods or any exempted activity. He further, submitted that trading cannot be treated as exempted service prior to 1st April 2011 i.e. the effective date of insertion of explanation to the definition of exempted service and it can not have retrospective application for which he relied up on the case law of MARTIN LOTTERY AGENCIES LTD. 2009 (14) S.T.R. 593 (S.C.). Further referring to this Tribunal s order no. A/87732/2018 dated 22-10-2018 passed in the case of I.G. Petrochemicals, he pointed out that trading is not a service for which credit is not required tobe reversed. His alternative submission is that benefit of 6(3AA) shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to trading activity and larger period of limitation has also been correctly invoked and confirmed by Commissioner (Appeals) that needs no interference by the Tribunal. 5. Heard from both the sides at length and perused the case record as well as order passed by the Commissioner (Appeals). It is observed that Learned Commissioner (Appeals) had stretched the explanation appended to Section 66 of the Finance Act w.e.f. 1-4-2011 that clarified that exempted service would include trading and given it a retrospective effect to cover whole disputed period of the appellant by invoking the principle laid down by the Tribunal in the case of R.M. Gupta Textiles (P) Ltd. v. CCE, Hyderabad-II [2000 (122) E.L.T. 229 (Tribunal)] and st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied which later becomes value added tax and now being dealt under GST. The taxable event of service tax is the act of providing service while act of sale alone is covered under taxable event of sales tax. Therefore, to call trade as service is conceptually improper. Hon'ble Supreme Court, in the presidential reference made in 1962, gave its landmark verdict that has been reported in 1963 AIR SC 1760 said, in one case (excise), the imposition is on the act of manufacture or production while in other (sale tax) it is on the act of sale. 6.1. It is a matter of different interpretation that sometimes there is marginal overlapping of case where goods and services are delivered together like service of food in restaurant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution 8. From a bare reading of the definition and provision reproduced above, it is apparently clear that a pure sale, unassociated with delivery of goods and services together, is not to be considered as service. Therefore what is contained in Section 66D of the Finance Act, 1994 dealing with negative list of services concerning trading of goods and the clarificatory circular referred above as well as inclusion of the same in the explanation appended to clause 2(e) of the Cenvat Credit Rules 2004 are mere clarificatory in nature since definition of service as contained in 65B(44) and exempted service in 66D are to be read conjointly and not in exclusion of each other. This being the statutory definition sale of goods, b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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