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TMI Blog2024 (11) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is a service provider, a service recipient and 'consideration'. In the present case, we observe that the Appellant had rendered services to milk unions in the nature of promotion, marketing, business analysis, etc. Against these services, the Appellant collected a service fee on which service tax was discharged on the applicable rate. On account of an AGM and resulting order dated 13.10.2014, the service fee was entirely waived on a retrospective basis for the period 01.04.2014 to 30.06.2014. Pursuant thereto the Appellant refunded the entire service fee to the milk unions along with the service tax recovered from them. There is no dispute on this fact. The present refund of service tax paid by the Appellant was filed on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has sought refund of service tax paid by them on the taxable value Rs. 5,44,29,757/- charged as service fee (cess) from their 21 milk unions during the period 01.04.2014 to 30.06.014, for which they issued invoice no. 79 to 96 all dated 20.07.2014 and issued debit note no. 50648-65 to milk unions. The assessee also recovered service tax Rs.56,37,495/- by issuing general voucher No. 270 dated 07.11.2014 from milk unions and issued debit note No. 50666-83 for the same. 3. However, as per decision in proposal No. 23(7) of Annual General Meeting of RCDF held on 26.09.2014 with the share holders (Unions) unanimously decided to waive of service fee (cess) the taxable value charged from milk unions for the period 01.04.2014 to 30.06.2014 and order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the period 01.04.2014 to 30.06.2014, the Appellant charged a service fee of Rs. 5,44,29,757/-. However, vide decision of Annual General Meeting dated 26.09.2014, as was documented through Order No. 28809-63 dated 13.10.2014, it was decided that the milk cess charged from the milk unions for the period 01.04.2014 to 30.09.2014 be waived off. In compliance with the order, the Appellant issued a Journal Voucher No. 271 dated 07.11.2014 for reversal of service fee of Rs. 5,44,29,757/- and credited this amount to the accounts of the milk unions. Further, Credit Note Nos. 50702-19 dated 23.03.2015 were issued to the milk unions to refund the amount of Rs. 67,27,520/-, which was recovered as service tax. Consequently, the Appellant filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s Law Dictionary (Eighth Edition, 2004), the term 'renegotiate' means the act or process of negotiating again or on different terms; a second or further negotiation. In the present case, the consideration for promotion and marketing services has been negotiated again from a pre-decided amount to NIL. 12. The present refund application pertains to the period when the negative list regime was in force, where the levy of service tax under Section 66B required the presence of a 'service' as defined under Section 65B(44) of the Act. In order for a transaction to qualify as a 'service', it is the prerequisite that there is a service provider, a service recipient and 'consideration'. 13. In the present case, we ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s hereby declared that nothing contained in this clause shall apply to, (A) The functions performed by the Members of Parliament, Members of State Legislative, Members of Panchayats, Members of Municipalities and Members of other local authorities who receive any consideration in performing the functions of that office as such member; or (B) The duties performed by any person who holds any post in pursuance of the provisions of the Constitution in that capacity; or (C) The duties performed by any person as a Chairperson or a Member or a Director in a body established by the Central Government or State Governments or local authority and who is not deemed as an employee before the commencement of this section. Explanation 2. For the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is already observed that prior to the waiver of service fee, the activities undertaken by the Appellant qualified as a taxable service in terms of Section 65B(44) of the Act, wherein the Appellant carried on the promotion, marketing, analysis, etc, of the business of the milk unions. Further, the Appellant also discharged service tax on the service fee received from the milk unions. Since, preceding the full waiver of service fee, there is no dispute that the Appellant was rendering a 'service' to the milk unions and that post waiver the appellant has issued credit notes to all milk union members for the amount of service tax as was collected from them, the appeal the service tax so paid is refundable to the appellant. 17. With th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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