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TMI Blog2024 (3) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... her income . Hence the question of invoking Rule 6 does not arise and I am of the view that Department has wrongly invoked the provisions of Rule 6(3) demanding the reversal of credit on the exempted services.' - Thus, it can safely be inferred that the investment in mutual funds by the appellant cannot be considered as an activity involving exempted services nor sale/trading of exempted goods. Thus, the demand on this count cannot be sustained. Whether the amount recovered from the employees in lieu of service period on leaving the employment is leviable to Service Tax? - HELD THAT:- The issue has been considered by this Tribunal in XL Health Corporation India (P.) Ltd. [ 2022 (5) TMI 427 - CESTAT BANGALORE ] where it was held that 'any compensation paid by the employee to the employer for resigning from the service without giving the requisite notice, would not be termed as consideration for the contract of employment and as such, would not fall within the preview of taxable service.' - thus, the demand of Service Tax on the charges recovered by the appellant from the employees in lieu of notice period, also cannot be sustained. The impugned order is set aside - Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, Rule 6(1) of CCR, 2004, itself would have no application as the transaction would not qualify as service or as an exempted service. In the present case, the appellant was only rendering taxable services, therefore, the Sub-Rule 6(1) of CCR, 2004 will not apply. Consequently, the Sub-Rule (2) and (3) of Rule 6 of CCR, 2004 accordingly cannot be held to be applicable when subrule (1) itself is not attracted. 3.1 Further, he has submitted that an activity can qualify as a service only on existence of three essential elements viz., service provider, service receiver and a consideration for undertaking such activity. In the present case, all these essential elements to constitute service are completely absent; the activity is only investment in mutual funds and redemption thereof by the appellant. Therefore, there is no service provider, service receiver or a consideration involved in the said activity i.e., investment in mutual funds on their own account. Therefore, the investment in mutual fund also cannot be considered as an exempted service. In support, he has referred to the following judgments: a. Ruchi Infrastructure Ltd. vs. CCE ST, Indore, 2020 (37) GSTL 236 (Tri. Del.) b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Tax, Hyderabad, 2022 (9)TMI 1445-CESTAT Hyderabad i. M/s KJS Cement Ltd. v. Commissioner of CGST, Central Excise Customs Jabalpur, (MP), 2023 (12) TMI 903-CESTAT Delhi j. M/s Shriram Pistons Rings Ltd. v. Commissioner of Central Tax, Ghaziabad, 2020 (3) TMI 844 CESTAT Allahabad k. XL Health Corporation India (P.) Ltd. vs. Commissioner of Central Tax, [2022] 138 taxmann.com 437 (Bangalore CESTAT) 4. Learned Authorized Representative for the Revenue reiterated the findings of the learned Commissioner. 5. Heard both sides and perused the records. The issues involved in the present appeal for determination are: (i) whether the amount 6% or 7% on is payable on the differential value of mutual fund investment and realization under Rule 6(3)(i) of CCR, 2004 being an exempted service; (ii) amount recovered from the employees in lieu of service period on leaving the employment is leviable to Service Tax. 6. The appellants are investing their surplus in mutual funds and not traded the same as securities. The Revenue considering such investment in mutual fund which later sold by the appellant, as trading in goods, accordingly is an exempted service, hence demanded 6% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d services and consequently issued the show cause notice. The appellant has been filing the returns under the taxable service of Commercial Training and Coaching and has provided all the records to the Department during the course of investigation and has not suppressed any material fact from the Department and in view of the various decisions relied upon by the appellant, extended period cannot be invoked where the Revenue s case is based on Balance Sheet and income return and other records of the assessee. In view of my discussion above, I am of the considered view that the impugned order is not sustainable in law and the same is set aside by allowing the appeal of the appellant. 6.1 The laid down principle has been followed subsequently by the Tribunal in Ambuja Cement Ltd. s case (supra) and United Racing and Blood Stock Breeders Ltd. (supra). No contrary decision has been placed by the Revenue. 6.2 Thus, following the said precedents, it can safely be inferred that the investment in mutual funds by the appellant cannot be considered as an activity involving exempted services nor sale/trading of exempted goods. Thus, the demand on this count cannot be sustained. 7. On the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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