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TMI Blog2024 (10) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... luded in entirety. Therefore, it is not open now for the revenue to argue that it falls within the expression airport service under Section 65(105)(zzm). Parliament would have manifested its intention to bring to tax a part of the activity, carried out in airport premises, if it wished, in more express and clearer terms.' In terms of the decision of the Hon ble Apex Court in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [ 2006 (4) TMI 127 - SUPREME COURT] , when a Show Cause Notice has already been issued on the same issue, another Show Cause Notice cannot be issued by invoking the extended period of limitation. In view of the above, this demand is not sustainable on the ground of limitation also. Demand of Service Tax amounting to Rs.42,03,908/- on reimbursement of electricity charges under the category of management, maintenance and repair service - HELD THAT:- The assessee-appellant has collected electricity charges on actual consumption basis and paid the same to CESC Limited. Hence, there is no liability on the assessee-appellant to pay Service Tax on this amount of reimbursement collected from the shop owners, as they acted as a 'Pure agent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndering of the services. However, they have not paid service tax in respect of some of the charges collected by them. Accordingly, proceedings were initiated against the Appellant-Assessee demanding service tax under various categories. 2. The appellant-assessee has been collecting car parking charges from their customers every year, but had not paid Service Tax on the said amount collected. The Officers of the Revenue were of the view that the amount of 'car parking charges' so collected are liable to Service Tax under the category of renting of immovable property service . 2.1. A scrutiny of the Profit And Loss Account of the appellant-assessee along with other relevant documents revealed that they had shown the income under the head Recoverable Exp. (Electricity and other facility) ; it was clarified by the assessee that the electricity cost of mall management services is recovered from the shop owners. However, no Service Tax was paid by the appellant on these charges. The Officers held the view that Service Tax was payable under the category of management, maintenance and repair service on these charges collected. 2.2. It was also found that the assessee had collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee submits that this issue is no longer res integra as the Hon ble Delhi High Court has decided the issue in favour of the assessee in the case of Mahesh Sunny Enterprises P. Ltd. v. Commissioner of Service Tax, New Delhi [2014 (34) S.T.R. 21 (Del.)]. Accordingly, they submit that the demand under this category is not sustainable. The assessee also submits that the demand on this count is not sustainable on the ground of limitation also, as the entire activity of the assessee was well within the knowledge of the Department when the first Show Cause Notice dated 31.12.2008 was issued to the assessee. In this regard, they cited the decision of the Hon ble Apex Court in the case of Nizam Sugar Factory v. Collector of Central Excise, A.P. [2006 (197) E.L.T. 465 (S.C.)] and submitted that when a Show Cause Notice has already been issued on the same issue, another Show Cause Notice cannot be issued by invoking the extended period of limitation. Hence, the assessee contends that the demand is not sustainable on the ground of limitation. 5.1. Regarding the demand of Service Tax amounting to Rs.42,03,908/- on reimbursement of electricity charges under the category of management, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Delhi High Court has decided this issue in the case of Mahesh Sunny Enterprises P. Ltd. v. Commissioner of Service Tax, New Delhi [2014 (34) S.T.R. 21 (Del.)].The relevant part of the said judgement is reproduced below: - 15. The above provision, i.e. the Explanation makes it clear beyond any doubt, that Parliament had intended that renting or immovable property was to be taxed, for the first time, from 1st June, 2007. Its intention that parking was to fall within the expression renting of immovable property - again with effect from 1-6-2007, is also clear from Section 65(90a). Yet, the definition of taxable service, while introducing Section 65(105)(zzzz) specifically excluded parking services. Now, parking services - regardless of wherever it is carried on - stand excluded in entirety. Therefore, it is not open now for the revenue to argue that it falls within the expression airport service under Section 65(105)(zzm). Parliament would have manifested its intention to bring to tax a part of the activity, carried out in airport premises, if it wished, in more express and clearer terms. For these reasons, this Court is in agreement with the reasoning in Flemingo (supra) and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the supply of electricity to tenant amounts to sale of goods and not supply of service. Further the Notification No.12/03 ST dated 20/6/2003exempt from service tax, any value of goods supplied by service provider to service recipient. Further we find that the Commissioner of Central Excise Pune. III vide Order-in-Original dated 28.11.2011 relied upon by the appellants dropped the proceedings which were initiated on the same ground in the case of M/s. Panchshil Tech Park Ltd. The Commissioner of Central Excise in the adjudication order held that electricity is goods and chargeable to Nil excise duty. The decision of the adjudicating authority is accepted by the Revenue as per the communication dated 26.9.2012 by the Commissioner of Central Excise, Pune.III. The present appellants are also under the jurisdiction of Pune III Commissionerate. 11. Therefore, we hold that the electricity charges are not liable to service tax. 8.2.2. By relying on the decision cited supra, we hold that the demand of Service Tax of Rs.42,03,908/- confirmed on reimbursement of electricity charges is not sustainable. Accordingly, we set aside the demand on this count. 8.3. Regarding the demand of Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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