TaxTMI 
TaxTMI 
2010 (6) TMI 667
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....and fee is not for any specific service rendered by them, but is a flat rate of charge to one category of buses namely, private bus operators, it cannot be said that the amount so collected is by way of service charge. Therefore, no service tax is payable for the stand fees collected by the appellant. 3. Facts relevant to this appeal are that : (i) Kadamba Transport Corporation (KTC) is a Government of Goa road transport undertaking. Kadamka Transport Corporation Limited was set up by the Government of Goa as a public limited company in the year 1980. (ii) KTC manages the bus stands under its objective for development of communication and transport facilities under the broad government objectives of providing public transport facilities. The KTC collects the stand fee from private bus operators. The KTC has sub-contracted the activity of collection of stand fee to various contractors on tender basis. (iii) The sub-contractor is given the right to collect the stand fee from all bus operators except buses of KTC, vehicles of KTC and Government of Goa and Buses of Maharashtra State Road Transport Corporation (MSRTC) and Karnataka State Road Transport Corporation (KSRTC). S....
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....e is not made liable under any category of service tax and it cannot be brought to tax under business support services residuary clause. (ii) Bus stand are created as a public utility services and not as support services for private bus operators. Thus, service tax is not applicable under business support services. (iii) Stand fees are stand alone charges collected basically for enhancing the revenue and no services are rendered in exchange thereof. Thus value of service as required under Section 67 is not present in the said transaction and the said fees are therefore not taxable. (iv) Bus terminal services have not yet been made taxable under service tax as has been done in case of port services or airport services, thus the same are out of the ambit of service tax. (v) At the most these stand fees are in the nature of parking fees which are again exempt under renting of immoveable property services. (vi) Extended period of limitation cannot be invoked. Therefore, the demand is time barred. (vii) No interest/penalty is chargeable/imposable. 5. Classification of services : Section 65A provides for classification of taxable services : (i) For the purposes....
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....ind of service it has sought to cover under the category of support services of business or commerce. It has sought to tax those business entities whose purpose is to provide business support services or infrastructure support services on a principal to principal basis. 8. As per Section explanation 65(104c) of the Finance Act, 1994 (hereinafter referred to as the Act) the expression "infrastructural support services" includes providing office along with office utilities, lounge, reception with competent personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security. It implies letting out of the premises with certain additional facilities and services. There should be some additional services involved in the transaction. 9. Literal meaning would lead to ambiguity : Taken a literal meaning, all spheres of service providers would be liable for service tax. For example a newspaper flashes an advertisement of a company; it essentially provides services in relation to business or commerce. Other examples include a) A doctor associated with a private nursing home b) advocate drafting a legal notice for recovery of bank debts c) shipping li....
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.... alone charges collected basically for enhancing the revenue and no services are rendered in exchange thereof. Thus value of service as required under Section 67 is not present in the said transaction and the said fees are therefore not taxable. 16. Stand fees are decided by the Government : (a) Directions of Government : The Government provides grant to the KTC to construct bus stand. On construction bus stand, the same are to be maintained through revenue grants to be received from the Government. (b) A bus stand is a designated parking location where a bus waits out of service between scheduled public transport services. At the appropriate time the bus can be moved the short distance to the stop, to begin boarding. In public bus stations, buses will often tend be marshalled into specific parking slots, which act as stands where buses queue for an available slot at a departure point. A bus stand is also usually employed to allow a bus to layover at a bus terminus, without giving the appearance of being in service, or blocking the stop from use by other buses that are in service. Bus stands also allow short term parking for driver changes or driver breaks. Due to the....
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....d to the passenger in exchange of this consideration. (j) Since collection of stand fee is not for any specific service rendered by them, but is a flat rate of charge to one category of busses namely, private bus operators, it cannot be said that the amount so collected is by way of service charge. Therefore, no service tax is payable for the stand fees collected by the appellant. 17. Bus terminal services have not yet been made taxable under service tax as has in case of port services or airport services, thus the same are out of the ambit of service tax. No Tax on Bus Terminal Services : There exists an intention of legislature to tax services such as airport services, port services separately. Whether such intention exists to tax bus terminal services as well? The CBEC has framed the service tax provisions since inception of the act in 1994. The areas of services on which the taxes are applied have gradually grown. Four such services are primarily related to each other : (a) Airport services (b) Port services (water) (c) Road transport services (d) Rail transport services 18. Out of the above Port services were made taxable with effect from 16th July, 200....
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.... case a SCN can be issued at any time within one year from the relevant date. Proviso to Section 73(1) of the Act provides that SCN can be issued at any time within 5 years from the relevant date, if service tax was not paid or levied by reason of fraud or collusion or willful mis-statement or suppression of facts or contravention of any of the provisions of the Act or Rules with intent to evade payment of service tax. Thus, the extended period of limitation is applicable only if any of the ingredients specified above exists. Further, in case a periodical return was required to be filed, then the 'relevant date' will be the date on which such return was filed or last date for filing such return. (b) In the present case, the period covered by the First SCN is from April, 2006 to March, 2008. The SCN is dated 27-1-2009 and was served on the appellant on 5th February 2009. The extended period of limitation has been invoked against the appellant on the basis that they had suppressed facts by withholding vital information relating to stand fees collection undertaken and that the same had come to notice only during the audit. (c) In the second case, the period covered by the second....
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....ourt held as under : (i) "28. Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceutical Co. v. Collector of Central Excise, Bombay, [1995 Suppl. (3) SCC, 462], we find that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to the CEGAT to come to a conclusion that the appellant was guilty of "....
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....S.C.) (ix) Kaur & Singh v. CCE - 1997 (94) E.L.T. 289 (S.C.) (k) In such cases, allegation of suppression of facts against the appellant with intent to evade payment of service tax is not sustainable. (l) Based on the above, it is submitted that the demand for the period April, 2006 to September, 2007 is time barred. The SCN is liable to be set aside on this ground itself. No interest/ penalty is chargeable/imposable : (a) The impugned order has proposed to demand interest under Section 75 and has proposed to impose penalties under Section 77 of the Act. (b) It is submitted that charging of interest under the provisions of Section 75 of the Act is not sustainable since service tax itself is not payable. Also, the appellant has not contravened any of the provisions of the Act, or Rules. Therefore, no penalty can be imposed under Section 77 of the Act. In any case, these penalties could not have been imposed as service tax itself is not payable by the appellants. (c) Section 80 will apply in the present case. Section 80 of the Act provides that no penalty shall be imposed on the assessee for any failure referred to in Sections 76, 77 or 78 of the Act, if the asse....
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.... 349 (Tri.-Mumbai) 10 Sriram Pistons & Rings Ltd. v. CCE -1983 (14) E.L.T. 1927 11 Geeta Engg.Works v. CCE - 2001 (177) E.L.T. 751 (Tri.-Del.) 12 Klochner Windsor India Ltd. v. CCE - 1998 (101) E.L.T. 348 (Tri.) 13 CCE v. Ballarpur Industries Ltd. - 2007 (215) E.L.T. 489 (S.C.) 14 CCE v. Brindavan Beverages (p) Ltd. - 2007 (213) E.L.T.487 (S.C.) 15 Duncans Industries Ltd. v. CCE - 2006 (201) E.L.T. 517 (S.C.) 16 Kaur & Singh v. CCE - 1997 (94) E.L.T. 289 (S.C.) 17 ETA Engineering Ltd. v. CCE, Chennai - 2004 (174) E.L.T. 19(Tri.-LB) 18 Flyingman Air Courier Pvt. Ltd. v. CCE - 2004 (170) E.L.T. 417 (Tri.-Del.) 19 Ispat Industries Ltd. v. CCE - 2006 (199) E.L.T. 509 (Tri.-Mum) 20 Secretary, Town Hall Committee v. CCE - 2007 (8) S.T.R. 170 (Tri. -Bang.) 21 CCE v. Sibar Ex-serviceman Welfare Coop. Society Ltd. - 2006 (4) S.T.R. 213 (Tri. - Del.) 22 Haldia Petrochemicals Ltd. v. CCE - 2006 (197) E.L.T. 97 (Tri. - Del.) 23 Siyaram Silk Mills Ltd. v. CCE - 2006 (195) E.L.T. 284 (Tri. - Mumbai) 24 Fibre Foils Ltd. v. CCE - 2005 (190) E.L.T. 352 (Tri. - Mumbai) 25 ITEL Industries Pvt. Ltd. v. CCE ....
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....401 (Ker.) = 2007-TIOL-710-HC-Kerala-St. it has been held by the Hon'ble High Court of Kerala that the next question to be considered is whether respondent is liable for service tax on the user fee collected from outgoing international passengers. As already noted, no users fee is collected from any domestic passengers or any international passenger landing at the airport from a foreign destination. The amount charged is a flat figure of Rs. 500/- from every outgoing international passenger. The respondent's case that the amount collected is not for any service rendered is obvious because services rendered to passengers are almost similar in nature and there is no reason why international passengers arriving from foreign destination are exonerated. Further, domestic terminal of the airport provides almost same services. However, no users fee is collected from any passenger travelling in the domestic sector. The Tribunal has referred to the decision taken by the Board of Directors of the respondent - Company in their meeting on 27-3-2000 when they decided to collect users development fee "for enhancing the revenue of the airport to cope up with the expenditure and debt servicing". I....