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TMI Blog2020 (4) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... /2019 - Dated:- 22-10-2019 - HON BLE DR. D.M. MISRA, MEMBER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) None for the Appellant Shri Onil Shivadikar, Assistant Commissioner, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA This appeal is directed against order-in-appeal No. NGP/EXCUS/000/APP/180/15-16 dated 06.06.2015 passed by Commissioner of Central Excise, Customs Service tax (Appeals), Nagpur. By the said order, the Commissioner (Appeals) has upheld the order of the Assistant Commissioner, Service Tax Headquarters, Aurangabad, by which the Assistant Commissioner has held as follows:- ORDER i) I confirm the demand of Service Tax of ₹ 1,16,535/- (Rupees one lakh sixteen thousand five hundred thirty five only) on M/s. Good Year South Asia Pvt. Ltd., Aurangabad under Section 73(1) of the Finance Act, 1994; ii) I confirm the recovery of interest on the amount of Service Tax of ₹ 1,16,535/- under Section 75 of the Finance Act, 1994; iii) I impose penalty of ₹ 100/- for everyday during which such failure continues or at the rate of 1% of ₹ 1,16,535/- per month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellants holding that the said services provided for under the category of Business Support Services and hence have confirmed demand against the appellants. 3.1 None appeared for the appellants. We have heard Shri Onil Shivadikar, Assistant Commissioner, Authorised Representative for the Revenue, who reiterated the orders of the authorities below. 3.2 We have considered the impugned order along with the submissions made in the appeal and the submissions of the learned AR during the course of argument. 3.3 We find that the issue involved in the present appeal is squarely covered by the decision of this Tribunal in the case of Air Liquide North India (P) Ltd. [2012 (27) STR 295 (Tri.-Del.)]. In the said decision, the Tribunal has held as follows:- 5.1 From the definition of Support service of business and commerce , as given in Section 65(104c) read with explanation appended thereto, we are of the prima facie view that the appellant s activity of providing storage tanks and machinery at the premises of their clients for which rental are charged, is not covered by definition of support service of business or commerce as this expression, as defined in Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 62 List II would resolve the issue. The juxtaposition of the different taxes within Entry 62 itself is in our view of particular significance. The entry speaks of taxes on luxuries including taxes on entertainments, amusements, betting and gambling . The word including must be given some meaning. In ordinary parlance, it indicates that what follows the word including comprises or is contained in or is a part of the whole of the word preceding. The nature of the included items would not only partake of the character of the whole, but may be construed as clarificatory of the whole. 69. It has also been held that the word includes may in certain contexts be a word of limitation (South Gujarat Roofing Tiles Manufacturers v. State of Gujarat [(1976) 4 SCC 601)]. In the context of Entry 62 of List II, this would not mean that the word luxuries would be restricted to entertainments, amusements, betting and gambling but would only emphasise the attribute which is common to the group. If luxuries is understood as meaning something which is purely for enjoyment and beyond the necessities of life, there can be no doubt that entertainments, amusements, betting and gambling wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, gambling and betting, which are clubbed with it. This principle of interpretation known as noscitur a sociis has received approval in Rainbow Steels Ltd. v. C.S.T. - (1981) 2 SCC 141, 145 although doubted in its indiscriminate application in State of Bombay v. Hospital Mazdoor Sabha : AIR 1960 SC 610. In the latter case this court was required to construe Section 2(j) of the Industrial Disputes Act which read : Section 2(j) provides that industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen . It was found that the words in the definition were of very wide and definite import. It was suggested that these words should be read in a restricted sense having regard to the included items on the principle of noscitur a sociis . The suggestion was rejected in the following language : It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of taxation, either directly or indirectly, the entries in the legislative lists have specifically said so or the impost is such that the subject matter of tax follows by necessary implication. In List II itself, the State legislature has been given the right to levy taxes on the entry of goods under Entry 53, on carriage of goods and passengers under Entry 56, on vehicles under Entry 57 and on animals and boats under Entry 58. There is no instance in any of the legislative lists of a tax being leviable only with reference to an attribute. An attribute as an object of taxation without reference to the object it qualifies would lead to legislative mayhem, blur the careful demarcation between taxation entries and upset the elaborate scheme embodied in the Constitution for the collection and distribution of revenue between the Union and the States. For example would a luxury vehicle be subjected to tax under Entry 62 or Entry 57 of List II? In the latter case, the levy would be subject to provisions of Entry 35 of List III and hence capable of being over-ridden by Parliament. If it is referable to Entry 62 there would be no such concurrent power in Parliament. 77. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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