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TMI Blog2024 (7) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that the Mega Exemption Notification No. 25/2012-ST provides exemption to United Nations and there is no condition in this notification that any organizations/agency attached or affiliated to the United Nations also requires to be notified by Central Govt. under Section 3 of the United Nations (Privileges and Immunities) Act, 1947 - the exemption to United Nations is general in nature and services provided to UNDP, UNICEF, UN Women, UN AIDS, UNODC, UNOPS is available on the basis of mega exemption Notification No. 25/2012-ST dated 20.06.2012 itself. The demand in this regard is accordingly is liable to be set aside. Services rendered at J K by the noticee in accordance to the Place of Provision of Service Rules, 2012 - HELD THAT:- It is noted that though the appellant has claimed the exemption, but no documentary evidence was provided by them before the adjudicating authority to corroborate their submissions. It is a fact that the levy of service tax extended to the whole of India except the State of Jammu Kashmir. However, this would be a question of fact to establish that the services were indeed provided in the non-taxable territory. Consequently, it would be appropriate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UN agencies and educational institutions set aside - As regards the demand in respect of services provided in the State of Jammu Kashmir and units in SEZ, the same is allowed by way of remand with direction to adjudicating authority below for providing an opportunity to the appellant-respondent to submit all documentary evidence to substantiate their claim to the exemption. The interest and penalties will be subject to recalculation, based on the demand confirmed, if any. - DR. RACHNA GUPTA, MEMBER (JUDICIAL) AND MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Shri Sunil Upadhyay, Advocate and Shri Gaurav Agarwal, Chartered Accountant for the Assessee Shri Rajeev Kapoor, Authorized Representative for the Department ORDER Two appeals, viz., Service Tax Appeal No. 50011 of 2017 and Service Tax Appeal No. 50274 of 2017 have been filed to assail the Order-in-Original dated 29.09.2016 wherein the Commissioner has confirmed the demand of Rs. 1,30,26,548/- along with interest and penalty. M/s Corporate Housekeeping Services Private Limited (hereinafter referred to as appellant) has filed Appeal No. 50011 of 2017 against the said confirmation of demand. The department has filed the Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the appellant-respondent submitted that the Commissioner did not consider that services rendered to United Nations Organizations viz., UN-Women, UNDP, UNFPA, UNICEF and UNODC etc are exempt from payment of service tax as these organisations are representatives of United Nations. The service tax demand against the appellant to the extent of Rs. 1,02,11,729/- in the Financial Year 2011-12 to 2014- 15 is liable to be set-aside as being exempted from service tax, being services rendered to the United Nations as per Notification No. 16/2002-ST dated 02.08.2002 and Notification No. 25/2012-ST dated 20.06.2012. 3.1 He further submitted that as per United Nations System Chart UN-Women, UNDP, UNFPA, UNICEF and UNODC etc are representatives of the six organs of the United Nations. In support of his submission, the learned counsel has relied upon the following decisions:- M/s AC Nielson ORG. Marg Pvt Ltd. vs COMMISSIONER of S.T., Mumbai-II reported in 2018(12) GSTL 322 (Tri-Mumbai) M/s Ballset Entertainment Pvt Ltd vs CST Delhi Final Order No ST/A/58436/2017-CU(DB) dated 19/12/2017 3.2 Learned counsel further contended that the Commissioner did not consider that the appellant has als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otified by the Central Government such as: (i) World Health Organisation (ii) International Labor Organisation (iii) UN Education, Scientific and Cultural Organisation (UNESCO) (iv) International Labor Organisation etc. This itself shows that all agencies mentioned in said charts are not covered in the definition of United Nations and is treated as International Organisations. The ld AR submitted that the adjudicating authority had observed that the appellant had failed to provide any evidence to establish that their clients fall either under the category of 'United Nations' or International Organisation . The ld. Authorized Representative relied on the Supreme Court Judgement dated 02.08.2011 in the case of M/s Saraswati Sugar Mills vs. Commissioner of Central Excise, Delhi in Civil Appeal No. 5295 of 2003. Issue 2: Services rendered at J K by the noticee in accordance to the Place of Provision of Service Rules, 2012 : The ld AR submitted that the appellant-respondent did not submit any evidence by way of documents, other than a single letter written by the Vice President, Administration, HDFC Standard Life Insurance. Issue 3: Services provided to SEZ: The ld. Authorized R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mil Nadu Housing Board vs Collector of C.Ex, Madras [1994(74)ELT 9(SC)] 6. New Decent Footwear Ind vs Union of India [2002 (150) ELT 71(Del)] 7. Heard both the parties and perused the case records. In order to appreciate the arguments of the LD Counsel and the ld AR, we need to examine the relevant notifications, which are reproduced hereinafter for ease of reference. Notification no. 16/2002 -ST dated 02.08.2002 Service Tax Services provided to United Nations or International Organisation exempted In exercise of the powers conferred by section 93 of the Finance Act, 1994 (32 of 1994), and in supersession of the notification of the Government of India, in the Ministry of Finance, Department of Revenue vide GSR 205(E), 24th April, 1998, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts all the taxable services specified in section 65 of the said Act provided by any person, to the United Nations or an International Organisation, from the whole of the service tax leviable under section 66 of the said Act. EXPLANATION:- For the purposes of this notification, International Organisation means an international organisation declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the services were provided by the appellant to M/s Lintas India (P) Ltd. and not to UNICEF. Notification 16/2002-ST exempts all taxable services provided by any person to the United Nations or an international organization as declared by the Government. UNICEF is covered by the exemption notification. We have perused various bills raised by the appellant to receive the consideration for such services. Though the bills were raised in the name of M/s Lintas India (P) Ltd., the nature of service is clearly mentioned as charges towards branding cost of three UNICEF Van, UNICEF Girl Star activities, cost of UNICEF Float Operational for 30 days, branding of Van for UNICEF. A perusal of these bills make it clear that the services are for UNICEF though the bill is raised through M/s Lintas India (P) Ltd. We find in such situation, denial of exemption under Notification 16/2002-ST will not be sustainable. Accordingly, the claim of the appellant is accepted for such exemption. 7.2 We now take up the issue of exemption under the Notification no. 25/2012-ST dated 20.06.2012, which is reproduced hereinafter for ease of reference: Notification no. 25/2012 -ST dated 20.06.2012 In exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force of law in India. 2) The Central Government may, from time to time, by notification in the Official Gazette, amend the Schedule in conformity with any amendments, duly made and adopted, of the provisions of the said Convention set out therein. 7.3 Therefore, section 2 of the United Nations (Privileges and Immunities) Act, 1947 provides privileges and immunities to the United Nations and its representatives and officers adopted by the General Assembly of the United Nations on the 13th day of February, 1946, wherein India is also member. There is no connection between exemption provided to United Nations and International Organizations as both are independent from each other. Further, the reference to The United Nations (Privileges and Immunities) Act, 1947 in the definition of Specified International Organisations is for limited purpose and has nothing to do with exemption provided to United Nations. We hold that to avail exemption under the Notification No. 25/2012-ST dated 20.06.2012, one has to be either United Nations or a notified International Organization. We note that the Mega Exemption Notification No. 25/2012-ST provides exemption to United Nations and there is no con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax has the option not to pay the service tax ab initio instead of the SEZ unit the developer claiming exemption by way of refund in terms of this notification. 9.1 It has been observed by the adjudicating authority that the appellant failed to furnish any documents required to avail exemption. In this regard, we note that the detailed procedure under this notification was prescribed under Notification no. 12/2013 ST dated 01.07.2013, which is reproduced hereinafter. Notification No. 12/2013-Service Tax G.S.R 448(E). In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act) read with sub-section 3 of section 95 of Finance (No.2), Act, 2004 (23 of 2004) and sub-section 3 of section 140 of the Finance Act, 2007 (22 of 2007) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 40/2012-Service Tax, dated the 20th June, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 482 (E), dated the 20th June, 2012, except as respects things done or omitted to be done before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishing the details of specified services received by it without payment of service tax; . 9.2 From the above, it is apparent that to avail the ab initio exemption, certain procedure was laid down, wherein the SEZ unit or Developer had to give a copy of the authorisation to the service provider for claiming the exemption. Therefore, as the adjudicating authority has held that no such evidence was submitted but as per assessee document are available and for this issue matter be remanded to the adjudicating authority with the directions to decide this particular issue afresh after giving opportunity to the appellant-respondent to submit corroborative evidence before the adjudicating authority, in order to claim the exemption. 10. It has also been submitted before us that the appellant-respondent had rendered housekeeping services to three educational institutions viz., IIT Patna, AIIMS Patna The Heritage School, Gurugram during the Financial Year 2014-15. We observe that mega exemption 25/2012-ST dated 20.6.2012 provided the following exemption: 9. Service provided,- (a) by an educational institution to its students, faculty and staff; (b) to an educational institution, by way of,- (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant-respondent to evade payment of duty. We find that this Tribunal has been consistent in holding that extended period cannot be invoked unless a positive act on the part of the appellant is evidenced showing the intent to evade payment of duty. We find that Principal Bench of the Tribunal in the case of M/s G.D. Goenka Pvt. Ltd (2023-TIOL-782-CESTAT.DEL) held as follows: 15. Another reason given in the SCN for invoking extended period of limitation was that the appellant had deposited the disputed amount of service tax during audit but later disputed it which shows the appellant s intent to wilfully and deliberately suppress the facts. This reasoning of the Revenue cannot be accepted because there is nothing in the law which requires the assessee to accept the views of the audit or of the Revenue. There is nothing in the law by which an inference of intent to evade can be drawn if the assessee does not agree with the audit. It also does not matter if the assessee deposited the disputed amount as service tax during audit and later disputed it. Often, during audit or investigation, the assessee deposits some or all of the disputed amounts and later, on consideration or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the department. We find that there is neither any provision in the law nor any obligation on the assessee to seek any clarification. It was held by the High Court of Delhi in paragraph 32 of Mahanagar Telephone Nigam Ltd. vs. Union of India Ors.6 as follows: 32. As noted above, the impugned show cause notice discloses that the respondents had faulted MTNL for not approaching the service tax authorities for clarification. The respondents have surmised that this would have been the normal course for any person acting with common prudence. However, it is apparent from the statements of various employees of MTNL that MTNL did not believe that the amount of compensation was chargeable to service tax and therefore, there was no requirement for seeking clarifications. Further, there is no provision in the Act which contemplates any procedure for seeking clarification from jurisdictional service tax authority. Clearly, the reasoning that MTNL ought to have approached the service tax authority for clarification is fallacious. 11.2 In view of the above, we uphold the impugned order in respect of dropping of penalties under sections 77 78 of the Finance Act, 1994. 12. In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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