TaxTMI 
TaxTMI 
TaxTMI 
2011 (12) TMI 412
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....ces, each dated 5.10.2009 were issued to the appellant for demand of service tax amounting to Rs. 34,78,231/- and Rs. 18,65,646/- along with interest under proviso to section 73(1) read with section 75 of the Finance Act, 1994 and also for imposition of penalty on them under provisions of sections 76 & 78 ibid. Show cause notices were adjudicated by the Addl. Commissioner by a common order dated 5.3.2010 by which total service tax demand of Rs. 53,43,877/- was confirmed against the appellant along with interest, and besides this penalties were imposed under sections 76, 77 & 78 of the Finance Act, 1994. The Addl. Commissioner in this order held that the appellant have supplied and installed storage tanks along with connecting pipelines, valves, gauges and vaporizing coil and also in some cases have installed complete plant and machinery for generation of Nitrogen gas along with complete pipeline, gauges, valves, etc. and for the gas storage tanks and machinery installed in premises of their client, have charged rental and this service of the appellant is taxable as "Business Support Service" under Section 65(105)(zzzq) read with section 65(104C) of Finance Act, 1994 w.e.f. 1.5.2006....
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....arged. According to the department this activity of the appellant is "Infrastructure Support Service" as defined in Explanation to section 65 (104c) of the Finance Act, 1994, and, therefore, is covered by the definition of "Business Support Service" as defined under section 65(105)(zzzq). Under section 65(105)(zzzq) service provided by any person in relation to support services of business or commerce, in any manner, is taxable. This provision had been introduced w.e.f. 1.5.2006. The term "Support Services of Business or Commerce" is defined under Section 65 (104c) as "services provided in relation to business or commerce and includes evaluation of prospective customers, Telemarketing, Processing of purchase orders and fulfilment of services, information and tracking delivery schedules, managing distribution and logistics, customer relationship management service, accounting and processing of transaction, operational assistance for marketing, formulation of customer service and pricing policy, Infrastructure Support services and other transaction processing". The Explanation to Section 65(104c) states that "for the purpose of this clause the expression 'Infrastructure Support Servi....
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....he whole, and the word "luxuries" in this Entry must, therefore, be understood in a sense analogous to that of the less general words which are clubbed with it and on this basis this term would mean the activity of enjoyment of or indulgence in that which is costly or which is generally recognized as being beyond the necessary requirements of an average member of society and not articles of luxury. In this regard Paras 68 to 77 of the judgment are reproduced below:- "68. Having rejected the second premise contended for by Mr. Salve, the next question is whether the language of Entry 62 List II would resolve the issue. The juxtaposition of the different taxes within Entry 62 itself is in our view of particular significance. The entry speaks of "taxes on luxuries including taxes on entertainments, amusements, betting and gambling". The word "including" must be given some meaning. In ordinary parlance, it indicates that what follows the word "including" comprises or is contained in or is a part of the whole of the word preceding. The nature of the included items would not only partake of the character of the whole, but may be construed as clarificatory of the whole. 69. It has also ....
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....he word "including" is intended to clarify or explain the concept of land held or let for purposes ancillary to agriculture. The idea seems to be to remove any doubts on the point whether waste land or forest land could be held to be capable of being held or let for purposes ancillary to agriculture." 72. In the present context the general meaning of 'luxury' has been explained or clarified and must be understood in a sense analogous to that of the less general words such as entertainments, amusements, gambling and betting, which are clubbed with it. This principle of interpretation known as 'noscitur a sociis' has received approval in Rainbow Steels Ltd. v. C.S.T. [1981] 2 SCC 141,145 although doubted in its indiscriminate application in State of Bombay vs. Hospital Mazdoor Sabha : AIR 1960 SC 610. In the latter case this Court was required to construe section 2(j) of the Industrial Disputes Act which read: "Section 2(j) provides that 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen". It was found that the words in the definition were ....
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....hen there is no other factor except contiguity to suggest the 'societas'. But where there is, as here, a term of wide denotation which is not free from ambiguity, the addition of the words such as 'including' is sufficiently indicative of the societas. As we have said the word 'includes' in the present context indicates a commonality or shared features or attributes of the including word with the included. 76. Furthermore where articles have been made the object of taxation, either directly or indirectly, the entries in the legislative lists have specifically said so or the impost is such that the subject matter of tax follows by necessary implication. In List II itself, the State Legislature has been given the right to levy taxes on the entry of goods under Entry 53, on 'carriage of goods and passengers' under Entry 56, on 'vehicles' under Entry 57 and on 'animals and boats under Entry 58. There is no instance in any of the legislative lists of a tax being leviable only with reference to an attribute. An attribute as an object of taxation without reference to the object it qualifies would lead to legislative mayhem, blur the careful demarcation between taxation entries and upset ....