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TMI Blog2024 (10) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents by extending the benefit of Notification No. 6/2005-S.T. We do not find any reason to interfere in such a detailed order.' - the demand prior to 30.06.2012 does not sustain. Demand for the period post 01.07.2012 (post-negative list period) - HELD THAT:- The Department has not submitted any evidence to the contrary. In the Finance Act, 1994, Section 65B(51) defines taxable services as any service on which service tax is leviable under Section 66B . Section 66B of the Finance Act, 1994 provides that there shall be levied a tax on all services except those mentioned in negative list (Negative list has been defined under Section 65B(34) as services listed in Section 66D of Finance Act, 1994) and provided or agreed to be provided by one person to another in the taxable territory and collected in the manner prescribed. In the instant case, it is noted that post 01.07.2012, the firm was not functional, and the rental agreements are in the name of the individual partner, with regard to the property held by them jointly. So, there cannot be a case of service to oneself. Hence, they are not liable to service tax - The decision in the case of the CADILA HEALTHCARE LIMITED V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, similar demand was raised which was also contested by the appellant and the appellate authority allowed the appeal by following decision of CESTAT in the case of CCE vs. Deoram Vishrambhai Patel reported in 2015 (40) STR 1146 (Tri. Mum). The appellate authority referred and considered the earlier order in original and the order in appeal. The appellate authority also took cognizance of certificate issued by the chartered accountant that the appellant firm was not carrying any business since 2009-10 onwards and no TDS was deducted in the name of appellant. 3.2 Learned counsel further submitted that the appellate authority also held that the lease/rent agreement was entered into by four owners and not by the appellant firm. He categorically held that the appellant ceased to exist w.e.f. 1.4.2010. Even otherwise, when the appellate authority in subsequent proceedings has dropped the demand on merits itself, there does not remain any scope for invocation of extended period and imposition of penalty. In support of his submission, learned counsel relied upon the following case laws:- CCE vs. Deoram Vishrambhai Patel 2015(40) STR 1146 (Tri. Mum.): Sarojben Khusalchand vs. CST 2017 (40) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternet banking, and (ii) by the 5th day of the month, in any other case, immediately following the calendar month in which the service is deemed to be provided. As per Section 73 (1), where any service tax has not been paid, the Central Excise Officer may issue a notice on the person chargeable with the service tax which has not been paid requiring him to show cause why he should not pay the amount specified in the notice. The said notice as per the relevant was to be issued within eighteen months of the relevant date. 5. We have heard the ld. Counsel for the appellant and the ld. AR for the Department and perused the case records. 6. We find that this issue for the pre-negative period is no more res integra. As submitted by the Ld. Counsel for the appellant, we find that for the pre-negative period, this issue stands decided in the case of Commissioner of Central Excise, Nasik vs. Deoram Vishrambhai Patel reported in 2015 (40) STR 1146 (Tri. -Mumbai), the Tribunal held as follows: 6 . We have considered the submissions made by both sides and perused the records. The issue that needs to be decided in this case is whether the respondent and his brothers are to be treated as associa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d received rent as detailed below :- Sr. No. Period Amount (Rs.) 1 2007-08 (1-6-2007 to 31-3-2008) Rs. 29,21,048/- 2 2008-09 Rs. 36,27,024/- 3 2009-10 Rs. 46,72,744/- 4 2010-11 Rs. 52,63,304/- 5 2011-12 Rs. 44,28,360/- But as the rent was distributed equally among each of the appellant, it is evident that each of them received an amount lesser than Rs. 8 lakhs and 10 lakhs in the years 2007-08 and 2008-09 respectively which is below the exemption limit of eight lakhs and ten lakhs during the relevant period. The appellants were, therefore, not liable to pay service tax on the amounts received by them during these two years by virtue of Notification No. 6/2005-S.T., dated 1-3-2005. The appellant s case is also supported by the Tribunal s decision in the case of Dinesh K. Patwa v. CST, Ahmedabad which is referred in Para 3(ii) above. However, in the Financial Year 2009-10 and 2010-11, the receipt off rent by each appellant exceeded the statutory exemption limit of Rs. 10 lakhs and the appellants have paid service tax along with interest on their own before receipt of SCN. This fact is not disputed by the department also and no additional tax liability has been worked out for the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 76 or 78 is imposable in this case for the period 2009-10 and 2010-11. 9 . It can be seen from the above reproduced findings of the first appellate authority, the conclusion arrived at is very correct, as co-owners of the property cannot be considered as liable for a Service Tax jointly or severally as Revenue has taken to identify the service provider and the service recipient for imposing service tax liability, which in this case, we find our individual. The conclusion arrived at by the first appellate authority is correct and he has confirmed the demand raised on the respondents by extending the benefit of Notification No. 6/2005-S.T. We do not find any reason to interfere in such a detailed order. 6.1 Relying on the above decision, the Tribunal in the case of M/s Anil Saini vs. Commissioner of Central Excise, Chandigarh-I reported in 2017 (51) STR 38 (Tri.-Chan.), held as follows: 3 . After hearing both the sides, considering the fact that the issue has already been dealt by this Tribunal in the case of CCE, Nasik v. Deoram Vishrambhai Patel reported in 2015 (40) S.T.R. 1146 (Tri.-Mumbai), 4 . We further take note to the fact that for the subsequent period the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence to the contrary. In the Finance Act, 1994, Section 65B(51) defines taxable services as any service on which service tax is leviable under Section 66B . Section 66B of the Finance Act, 1994 provides that there shall be levied a tax on all services except those mentioned in negative list (Negative list has been defined under Section 65B(34) as services listed in Section 66D of Finance Act, 1994) and provided or agreed to be provided by one person to another in the taxable territory and collected in the manner prescribed. In the instant case, it is noted that post 01.07.2012, the firm was not functional, and the rental agreements are in the name of the individual partner, with regard to the property held by them jointly. So, there cannot be a case of service to oneself. Hence, we hold that they are not liable to service tax. The decision in the case of the Cadila Healthcare relied upon by the Ld AR deals with the remuneration received by the Director of the firm for providing other independent services, which is not the case of the appellant. 8. In view of the above discussions, we hold that the impugned order is liable to be set aside and is set aside. Consequently, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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