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TMI Blog2024 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... iding infrastructure for parking of the vehicles, roads, ticket counters, resting facilities etc. inside the premises - the contractors, who are undertaking the work with a commercial motive cannot be equated to a sovereign authority though operating in terms of a contract with the authority - the appellant is liable to pay service tax on this account. Levy of service tax - Manpower Recruitment Agency - undertaking work allotted by M/s Faridkot Co-op. Milk Producer Union Ltd., Firozpur, Punjab Health System Corporation Ltd., Civil Hospital, Kotkapura and Faridkot etc - appellant could not submit any records or documents to prove the same - HELD THAT:- The appellant has been denied an opportunity to represent their case with whatever evidence they could have obtained. To that extent, we find that the impugned proceedings are vitiated. Moreover, it is opined that the entire demand in this category cannot be confirmed on the basis of a single contract or invoice; it was incumbent upon the Department that they prove that the liability to service tax with evidence after giving due opportunity to the appellants in following the principles of natural justice. Such procedure not being foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Information received by the officers of Central Excise, Chandigarh indicated that M/s Punjab State Bus Stand Management Committee has awarded contract for operation and maintenance of bus stands at Mukatsar, Zira and Jagroan to the appellants and are collecting Adda Fees in this regard; investigations were conducted and it was revealed that the appellants are also rendering other services as mentioned above. Investigation was conducted and various documents were collected. After scrutiny of the documents and records, a Show Cause Notice seeking to confirm demand of service tax of Rs.72,48,491/- along with interest and penalty was issued to the appellants while proposing to appropriate amount of Rs.4,24,642/- deposited by the appellants during the investigation. Learned Commissioner vide impugned order dated 30.03.2012 confirmed the demand of Rs.65,14,9741/- along with interest and equal penalty under Section 78 and a penalty of Rs.5000/- under Section 77. Hence, this appeal. 2. Shri Vikrant Kackaria, learned Counsel for the appellants, submits that the demand is mainly as shown below: Service Provided Service Tax demanded in Rs. Support Services of Business or Commerce 56,74,783/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjab Health System Corporation Ltd., Civil Hospital, Kotkapura and Faridkot. He submits that demand can be raised only if the appellant is charging on per-person basis; the appellant was, in fact, charging on per-contract basis for the specific work carried out; the appellant has stated, during the investigation, that they were not in a possession of any documents like contracts etc. and the same may be obtained from respective Government Departments; department procured some documents but the same was not supplied to the appellants; Department has relied upon a few invoices which show the work to be Sanitation work and not Manpower supply; he submits that Tribunal held in the following cases that service tax can only be charged when the charges recovered are on the basis of number of persons and not on work basis. He relies on the following cases: Tiwari Services- 2020 (37) GSTL 57 (Tri. Mumbai) Gokul Ram Gurjar 2018 (19) GSTL 269 (Tri. Del.) Shailu Traders 2018 (10) GSTL 462 (Tri. Del.) 5. Learned Counsel further submits that amount of Rs.1,06,461/- was demanded incorrectly on Management, Maintenance and Repair Service; the work which was performed by the appellant was in connec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny records and therefore, as recorded by the Adjudicating Authority, the documents obtained during the investigation revealed that the agreement with District Cooperative Milk Producers Union was for supply of manpower only. 8. In rebuttal, learned Counsel for the appellants submits that in terms of the contract and as accepted by the Department, Adda Fees being collected from the buses on entry to the bus stands for various diverse services being provided by the noticee to other bus operators such as providing counters for selling tickets related to infrastructure for parking of buses etc. He submits, therefore, that the service cannot be said to be Business Support Service. 9. Heard both sides and perused the records of the case. As regards the demand of service tax on Adda Fees , we find on going through the contract with the Punjab Roadways, the appellants are collecting the same. The appellants are paying a certain fixed sum to the Government. They are retaining the entire amount collected from the bus operators. In lieu of the consideration received from the bus operators, they are providing infrastructure for parking of the vehicles, roads, ticket counters, resting facilitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of miscellaneous income of Rs.10,32,070/- for the year 2010-11, we find that the Department has not established as to the payer/ service recipient of the amount. We are of the considered opinion that unless all elements i.e. service provider, service receiver, the service provided and the remuneration received are established, demand of service tax cannot be sustained. Coming to demand of service tax on Management, Maintenance and Repair Service , we find that the appellant submits that they have undertaken the work with respect to construction of roads/ railways and not in respect of any commercial enterprise and the same is exempt vide Notification No.24/2009. We find that the Department did not controvert the submissions of the appellants and have not established as to which was the specific work they have undertaken. Effort has been made to confirm the demand on the basis of entries in the books of accounts. We find that Tribunal held in many cases that such a confirmation is not acceptable. 12. Further, we find that the appellants have submitted that during the year 2005-06, the benefit of small-scale exemption contained under Notification No.06/2005 has not been e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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