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TMI Blog2024 (8) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... . From the Clauses of agreement, it is apparent that the appellant has been engaged for the purpose of maintenance and handling of a retail outlet of IOCL - from the Terms and Conditions of the Agreement, we observe that the Maintenance and Handling Service rendered by the appellant would not come within the ambit of 'Business Auxiliary Service'. The Department considered the services rendered by the appellant under the category of 'Business Auxiliary Service', on the allegation that they have promoted the sales and/or marketing of the products manufactured by IOCL - the activities undertaken by the appellant would not fall under any of the clauses of definition of business auxiliary service. None of the Clauses of the Agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces rendered by the appellant as promotion, marketing or selling of the products of the company. Accordingly, the service charges received by the appellant towards rendering of the said services were considered as liable for service tax under the category of 'Business Auxiliary Service (BAS). 2.1. On the basis of these allegations, a Show Cause Notice dated 16.10.2012 was issued to the appellant demanding service tax, including Cess, amounting to Rs.2,18,133/-, for the period from 2007-08 to 2010-11. The said Notice was adjudicated by the Assistant Commissioner, wherein the demands of service tax raised in the Notice were confirmed along with interest and penalty. On appeal, the Ld. Commissioner (Appeals) upheld the demands confirmed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factured by IOCL is absolutely wrong. Accordingly, they prayed for setting aside the demands confirmed in the impugned order and for allowing their appeal. 3.1. In their additional grounds, the appellant submits that in case the Department considered that they are liable for payment of Service Tax, the service charges received by them should be considered as inclusive of service tax, as per Section 67(2) of the Finance Act, 1994, as they have not collected any service tax from IOCL for the services rendered. 4. The Ld. Authorized Representative appearing for the Revenue reiterated the findings in the impugned order. 5. Heard both sides and perused the appeal documents. 6. We observe that as per the Agreement dated 19.08.2006, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f operation of the Company Owned Company Operated outlet. From the Clauses of agreement, it is apparent that the appellant has been engaged for the purpose of maintenance and handling of a retail outlet of IOCL. The said outlet is fully owned and operated by IOCL and it is IOCL's property. It is quite clear from the agreement that the ownership and operation responsibility fully rests on IOCL. The appellant has no control and say in operation as well in the marketing matter, which is controlled by IOCL and its staff. Thus, from the Terms and Conditions of the Agreement, we observe that the Maintenance and Handling Service rendered by the appellant would not come within the ambit of 'Business Auxiliary Service'. 6.2. The Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sales or marketing the goods manufactured by IOCL. At the maximum, the services rendered can be categorized as Management and Maintenance Service', but there is no demand of service tax under this category in the impugned Notice. Thus, we hold that the demand of service tax confirmed in the impugned order under the category of 'Business Auxiliary Service' is not sustainable and accordingly, we set aside the same. Since the demand of service tax is not sustainable, the question of demanding interest and imposing penalties does not arise. 7. In view of the above discussions, we set aside the impugned order and allow the appeal filed by the appellant. 8. The miscellaneous application for bringing additional documents on record i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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