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TMI Blog2023 (11) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... rket Committees that the activity of rent/lease on shop/land/platform as such cannot be said to be service. Appeal dismissed. - SHRI DILIP GUPTA, PRESIDENT AND P.V. SUBBA RAO, MEMBER (TECHNICAL) None for the Appellant Mr. S.K. Meena, Authorised Representative for the Department ORDER Case has been called out but no one has appeared on behalf of the appellant. The office note indicates that the notice sent to the appellant and the learned counsel appearing for the appellant was duly served upon the appellant on 01.05.2023 and upon the learned counsel on 28.04.2023. In fact, on 08.08.2023 learned counsel for the appellant appeared and had sought an adjournment. The matter was, accordingly, adjourned to 11.10.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnover. 6. The appeals are disposed of in above terms. The respective jurisdictional adjudication authorities may therefore recalculate the quantum of service tax leviable in view of above. 4. Such orders passed by the Tribunal were assailed by Krishi Upaj Mandi Samiti before the Supreme Court and all the Civil Appeals were dismissed on 23.02.2022. The decision is reported in Krishi Upaj Samiti vs. Commissioner of C. Ex. S.T., Alwar [2022(58) G.S.T.L. 129 (S.C.)] 5. The relevant portion of the judgment of the Supreme Court is reproduced below: 2.1 xxxxx The CESTAT ultimately disposed of the appeals in the following terms:- (I) The appellants are liable to pay service tax under the category of renting of immovable proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a mandatory statutory, the legislature has used the word shall'. Therefore, when under sub-section (2) of Section 9, the word used is may , the activities mentioned in Section 9(2)(xvii) cannot be said to be mandatory statutory duty and/or activity. Under Section 9(2), it is not a mandatory statutory duty cast upon the Market Committees to allot/lease/rent the shop/platform/land/space to the traders. Hence, such an activity cannot be said to be a mandatory statutory activity as contended on behalf of the appellants. Even the fees which is collected is not deposited into the Government Treasury. It will go to the Market Committee Fund and will be used by the market committee(s). In the facts of the case on hand, such a fee collecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank and it shall not be withdrawn upon except in accordance with these rules. 10.1 Now, so far as the submission on behalf of the appellants relying upon Rule 45 of the Rules, 1963 that the fees, which is collected shall be deposited with the Government Treasury and therefore also the Market Committees are exempted from payment of service tax is concerned, it is to be noted that on fair reading of Rule 45, the amount of fee so collected on such activities - rent/lease shall not go to the Government. Rule 45 provides how the money received by the Market Committees shall be invested and/or deposited. It provides that all money received by the Market Committee shall be credited to the fund called the Market Committee Fund. It further pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge , it is required to be noted that it is not the case on behalf of the Market Committees that the activity of rent/lease on shop/land/platform as such cannot be said to be service. However, their only submission is that the Market Committees are exempted from levy of service tax on such service/activity as provided under the 2006 circular, which as observed hereinabove has no substance. 12. In view of the above and for the reasons stated above, all these appeals fail and the same deserve to be dismissed and are accordingly dismissed. However, in the facts and circumstances of the case. (emphasis supplied) 6. In the present case, the order dated 25.05.2017 passed by the Commissioner (Appeals) is in terms of the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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