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TMI Blog2023 (10) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... tenants/concessionaires and also the availability of Cenvat credit on Outdoor Catering services and Club Membership. 2. The Appellants are registered with Service Tax Department vide Registration No. AABCH3448MST001 for providing various services viz., Airport Service, Renting of Immovable Property service, Management Consultancy service, Consulting Engineer service, Business Support and Business Auxiliary services and others. 3. The Appellant entered into an agreement with various concessionaires. The agreement is for the grant of right to use the various locations, which are primarily for use in the course of their business in the Airport. As per the agreement, the concessionaires should utilize the locations for the sole purpose for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,774/- including cess. Further, the SCN also proposed to disallow Cenvat credit availed on input services being Membership of Clubs and Outdoor Catering totaling Rs.18,88,042/-. The SCN also proposed to demand interest and proposed imposition of penalty under Sec 76, 78 and Rule 15 of CCR. 6. The SCN was adjudicated on contest by the Commissioner vide OIO dated 25.11.2013 confirming the proposed demands with interest and further equal penalty was imposed under Rule 15 of CCR read with Sec 78 of the Act. Being aggrieved, the Appellant is before this Tribunal. 7. Assailing the Impugned Order, learned Counsel for the Appellant submits that both electricity and water are "goods" and thus demand of service tax under these two heads is erroneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices provided in the Port or Airport, inter alia, including supply of water and supply of electricity. The Revenue prior to the issue of this notification believed that amount collected by the Appellants for these two activities, which are in the nature of sale of goods, was not liable to service tax. Thus, the Impugned Order is fit to be set aside for invocation of extended period of limitation, itself. 9. Learned Counsel also relies on the ruling of Hon'ble Delhi High Court in the case of Intercontinental Consultants and Technocrats Pvt Ltd, as the Appellants have acted as a pure agent by collecting the electricity and water charges from their tenants/licensees and have paid the amount to the suppliers of these items. Hence, Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed these charges on reimbursable basis, except for the fact that they have also collected 10% extra amount. The Department felt that since they have collected 10% extra over and above actual amount, the Appellants are not in the nature of pure agent and instead rendered services as an independent service provider. 14. On going through the records and submissions made by the Appellant, it is observed that they have mainly contended that they have entered into agreement with various concessionaires to grant the right to use various locations which are primarily for the use in the course of their business in Airport and that they have been paying service tax under the category of 'Renting of Immovable Property service' and the same has been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter alia, provided for exemption of services relating to supply of water and electricity, in support that prior to this, the same was liable to service tax. In order to understand why the supply of water and supply of electricity were exempted from service tax when provided within a Port or Airport, under the category of "Airport Services", which is not in dispute in the present case, one has to refer to DO Letter D.O.F. No. 334/1/2010-TRU dated 26.02.2010. This DO Letter clearly indicates that various actions have been taken including issuance of Notification No. 31/2010-ST dated 22.06.2010 to ensure that whatever activities within the Airport, which were not being charged to service tax, would not be charged service tax, even after intro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... markup of 10%. 19. In so far as the denial of credit on account of Outdoor Catering service is concerned, it is no longer res integra, in view of the case laws cited, as it is service in relation to business and not excluded as such for period prior to 01.07.2011. Similarly, in the case of Club Membership, also admittedly is for membership of the Appellant, with various professional associations/bodies and not for individual club membership, therefore, it is again to be considered as relating to business. Therefore, both these services were eligible for Cenvat credit during the relevant period. 20. In view of the findings and observations, we allow the Appeal and set aside the Impugned Order. Appellant shall be entitled to consequential ..... X X X X Extracts X X X X X X X X Extracts X X X X
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