TaxTMI 
TaxTMI 
2014 (12) TMI 597
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....spect of all the three show cause notices. Sl.No Appeal No. Service Tax confirmed Penalty imposed 1. No. ST/148/2006 OIO 12/06 dt.10.05.06 Rs.1,69,88,198/- Rs.1,69,88,198/- Plus Rs. 100/- per day u/s 76 of the FA. 2. No. ST/147/2006 OIO 13/06 dt.10.05.06 Rs.2,68,68,830/- Rs.100/- per day u/s 76 of the FA. 3. No. ST/127/2007 OIO 8/07 dt.22.03.07 Rs. 59,05,875/- Rs.100/- per day u/s 76 of the FA. Rs. 1000/- u/s.77 Aggrieved by these orders, the appellants filed appeals before this Bench. The Tribunal vide Stay Order No. 1087-1088/2006 dated 07.11.2006, ordered predeposit of Rs. 65,00,000/-. The appellants preferred writ petition before the Hon'ble High Court of Madras. The Hon'ble High Court, by judgment dated 18.08.2010, in W.P.No. 50168/06 and M.P. No. 1/2006, set aside the stay order of the Tribunal and remanded the matter to the Tribunal to reconsider the issue regarding waiver of predeposit in the light of the Tribunals Order in the appellant's own case reported in 2008 (9) STR 72 (Tri.-Chen.) and in the case of NCR Corporation India Pvt. Ltd. Vs. CST, Bangalore - 2008 (12) STR 68 (Tri.-Bang.). Subsequentl....
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....tion and Data processing. Since the appellants have leased their ATMs to various banks and collected charges from the banks, the demand is rightly confirmed under the BOF. He also submits that the appellants have taken the registration on their own under the category of banks and financial services well before the period of dispute. He also submits that the limitation of extended period is rightly involvked by the adjudicating authority for imposition of penalty. 5. We have carefully considered submissions of both sides and written synopsis and gone through the records. Prima facie, the issue involved in the present case relates to whether the appellants providing the ATM facilities to various Banks is covered under Section 65(11)(i) Financial Leasing Services including equipment leasing and Provision and Transfer of Information and Data processing under Banking and other Financial services during the period from 16.08.2002 to 15.06.2005. We find that w.e.f. 1.5.2006 ATM Service a separate service was introduced under Section 65(96) and Section 65(105)(zzzk) of Finance Act and the appellants are duly discharging service tax under the ATM Services. The entire dispute is pertainin....
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....e demanded service tax under BAS or BOF etc. This Tribunal already discussed the identical issue in detail in the case of M/s. Diebold Systems (P) Ltd. CST, Chennai - 2008 (9) STR 546 (Tri.-Chen.) allowed the appeals. Similarly, the Tribunal Bangalore Bench in the case of NCR Corporation India Ltd. (supra) also held that no service tax chargeable prior to 01.05.2006. The relevant portion of the said decision is reproduced as under:- 6. On a very careful consideration of the issue, we find that the issue involved is the liability of Service tax on the supply of ATM to the clients during the relevant period. Service tax was also been charged on cash replenishment and customer care under the category of 'Business Auxiliary Services'. We find that the ATM service as a separate category of service has been introduced only with effect from 1-5-2006. The definition of ATM services is as follows : Section 65(9b), 'automated teller machine operations, maintenance or management service' means any service provided in relation....
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....s and the revenue confirmed the demand of service tax under BOF services. The Tribunal held that leasing of machine not chargeable to service tax under BOF. 9. In this regard, we find that the Hon'ble Supreme Court in the case of Association of Leasing Financial Services Companies Vs. UOI (supra) while deciding the validity of Section 68(12) & Section 65(105)(zm) of Finance Act relating to service tax on leasing and hire purchase had discussed and held that the scope of Financial Transaction and equipment leasing transaction s are two different and distinct transactions. The relevant portion of the said order is reproduced as under:- The point which needs to be re-stated is that the funding activity undertaken by the financing party which could be in the form of loan or equipment leasing or hire- purchase financing, would be exigible to service tax if such activity falls in the category of 'banking and other financial services' under Section 65(12) of the Finance Act, 1994. The financial transaction was earlier out of the tax net. In the process there are two different....