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TMI Blog2020 (1) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on account of loan repayment, sale value of goods, job charges, excise duty and education cess, for determining the aggregate value of taxable service during each year for which the demand has been made - benefit of exemption under notification No 6/2005-ST as amended from time to time will be available subject to fulfilment of other conditions as prescribed. Matter remanded back for re-computation of service tax payable - Appeal allowed by way of remand. - Service Tax Miscellaneous Application No. 86613 of 2019 in Service Tax Appeal No. 85454 of 2015 - A/85710/2020 - Dated:- 29-1-2020 - HON BLE SHRI SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND HON BLE SHRI AJAY SHARMA MEMBER (JUDICIAL) Shri Aparajit Ninawae, Advocate for the Appellant Shri Onil Shivadikar, Authorized Representative for the Respondent ORDER Per: Sanjiv Srivastava This appeal is directed against Order in Appeal No NGP/ EXCUS/000/APP/177/14-15 dated 14.11.2014 of the Commissioner (Appeal) Customs, Central Excise Service Tax, Nagpur. The impugned order has been by passed by the Commissioner (Appeals) in remand proceedings, in matter remanded back by the Tribunal vide its Final Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 25% of this penalty amount subject to the condition that the entire amount of Service Tax along with interest and 25% penalty under Section 78 are paid within 30 days of communication of this order . 2.1 Appellant is a proprietorship concern registered with the department as provider of the services under the category of Business Support Services . 2.2 During the course of audit of the records, it was noticed that they have entered into agreement for renting of premises and machineries with M/s Agro Fab Machineries India (P) Ltd (M/s Agro Fab). On further scrutiny of records of M/s Agro Fab, it was noticed that apart from rent they were paying charges towards water and electricity, job charges, salary and wages to the employees, insurance and auditing charges on behalf of appellant. Thus Appellant have provided all the infrastructure support facilities along with manpower to appellants against an agreed consideration. Thus revenue entertained the view that the services provided by the Appellant were infrastructure support services , classifiable under the taxable category Business Support Services defined by Section 65 (104c) of the Finance Act, 1994. 2.3 Investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record and is not coming up with the actual facts of the case. He ought to have put forth on record the copies of contract and the terms and conditions of contract entered into by him with M/s Agro Fab from which the exact and accurate details and the facts of case will emerge. But he has simply avoided doing this and repeatedly drumming his version of the story which he has not corroborated by placing any evidences on record which would have appropriately been the copy of the contract/ agreement with the relevant terms and conditions. 10.5 On the other hand, the facts which are obvious in the case is that the appellant, even after renting the premises and plant to (and) machineries to M/s Agro Fab is still continuing to work in the factory and running the factory. There are various questions to be answered. What is the appellant doing in the factory after renting it out? On what terms and conditions is he allowed to continue operating from the factory, when the entire factory now belongs to M/s Agro Fab? Why is M/s Agro Fab incurring various expenditures in the factory and why are they being debited to the appellant account? Why is the Appellant receiving the job charges fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and thus are includible in the gross value. If there is any loan repayment by M/s Agro Fab to the Appellants, the amount of such loan repayment during the said period along with the supporting documents has not been brought before me by the appellant and hence I am unable to allow any deductions on this account. 10.8 All the cases quoted and relied upon by the Appellant are not relevant to the circumstances under which the appellant is working. The appellant cannot simply pick up one thread of the story and cite cases which are similar to it. He has to come with the entire facts of the case. 4.3 We find that issue in respect of the renting of factory premises etc., has been subject matter of the decision of tribunal in following cases: Narsinha SSK [2015 (38) S.T.R. 165 (Tri.-Mumbai)] Air Liquide North India [2012 (27) STR 296 (T-Del)] Fine Switchgears [2012 (25) STR 443 (T-Del)] Commissioner (Appeal) has found that these decisions are not applicable in case of the Appellant without assigning any plausible reason. 4.4 The definitions of the Business Support Services as per Finance Act, 1994 is as follows: Support Services of Business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not in position to agree to the logic of the Commissioner (Appeal) in not allowing the deductions claimed by the Appellant towards, Sale of Good, Job Charges, Loan repayment, Excise Duty and Education Cess paid As per the explanation appended to Notification No 6/2005-ST dated 01.03.2005 as amended by Notification No 8/2008-ST dated 01.03.2008, aggregate value not exceeding *ten lakh rupees means the sum total of first consecutive payments received during a financial year towards the gross amount, as prescribed under section 67 of the said Finance Act, charged by the service provider towards taxable services till the aggregate amount of such payments is equal to ten lakh rupees but does not include payments received towards such gross amount which are exempt from whole of service tax leviable thereon under section 66 of the said Finance Act under any other notification. 4.5 We find that appellant had made specific claim before the adjudicating authority and the Commissioner (Appeal) giving the break up of amounts received by them during the period of demand as indicated in table below: (Refer para 11 of the Order in Original of the Joint Commissioner) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all Scale Exemption under notification No 6/2005-ST dated 01.03.2005 as amended from time to time, subject to appellant fulfilling conditions as prescribed. 4.7 We do not find much force in the submissions made by the appellants on the issue of limitation because the facts which led to short payment of Service Tax were only in the knowledge of appellant and they had failed to determine and pay the Service Tax due from them. 5.1 In view of discussions as above we allow the appeal filed by the appellants to the extent of allowing the deduction claimed by the appellant on account of loan repayment, sale value of goods, job charges, excise duty and education cess, for determining the aggregate value of taxable service during each year for which the demand has been made; and benefit of exemption under notification No 6/2005-ST as amended from time to time will be available subject to fulfilment of other conditions as prescribed. 5.2 Thus the appeal is partly allowed, the impugned order is set aside and the matter remanded back for re-computation of service tax payable in above terms. 5.3 Miscellaneous application is disposed off. (Order pronounced in open court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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