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2017 (11) TMI 1112
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....the appeal on 5.9.2013 framed following substantial questions of law:- "(i) Whether in the facts & circumstances of the case even if it held to be a service, it is a service of the kind mentioned in clause (i) to (vii) of Section 65 (105) (zzb)? (ii) Whether in the facts & circumstances of the case, the transaction of purchase & sale of liquor falls within the ambit of service u/s 65(19) read with 65(105) (zzb) of the Act?" 3. The facts of the case are that the appellant a Government of Rajasthan Undertaking, registered under the Companies Act, 1956 is entrusted by the State Government with the business of purchase of IMFL and Beer (liquor) from manufacturers, transport of liquor to various depots of the appellant and f....
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....lant had provided the taxable BAS and had willfully suppressed information regarding liability to service tax by failing to file returns, disclosing the income received and failing to remit service tax, with an intent to evade payment of service tax. The show cause notice proposed assessment and levy of service tax, interest and penalties. The show cause notice proposals were confirmed by the adjudication order, after a due process of considering the appellant's response, analysis of the material on record and hearing the appellant. 4. Counsel for the appellant has taken us to the provisions of Clause (i) to (vii) of Sec.65 (105) (zzb) and Sec.65 (19) of the Finance Act, 1994 which reads as under:- Section 65 Clause (i) to (vii) ....
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.... for the time being, entered in the register of architects maintained under section 23 of the Architect Act,1972 (20 of 1972) and also includes any commercial concern engaged in any manner, whether directly or indirectly, in rendering services in the field of architecture; (7) "assessee" means a person liable to pay the service tax and includes his agent; (7a) "auction of property" includes calling the auction or providing a facility, advertising or illustrating services, pre-auction price estimates, short- term storage services, repair or restoration services in relation to auction of property; (7b) "associated enterprise" has the meaning assigned to it in section 92A of the Income tax Act, 1961;] Sec.65(19) of t....
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....rities have committed serious error in taking into consideration the liquor service which is required to be considered as service mentioned in Section 65 (105) (zzb). 6. In fact, now the issue is squarely covered by the decision of Chattishgarh High Court in Union of India vs. M/s. Chattisgarh Estate Beverages Corporation, Tax Case No.6/2009 decided on 2.5.2013 wherein it has been observed as under:- "9. It is not disputed that if the Corporation was engaged in sale and purchase of liquor for the State, then no service tax was payable. 10. The Tribunal has recorded a finding of fact that the Corporation was engaged in purchase and sale of liquor and could not be considered as clearing and forwarding agent for the State ....
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....o be made by the assessee and thereafter he is to make payment. In spite of our specific query to the counsel for the department, it was not pointed out that any amount was paid by the assessee company. It was only the arrangement by which the amount which was to be received was reduced and no amount was paid as commission. 46. In that view of the matter, if we look at the provisions of Section 194H and even if explanation is taken into consideration, there is no occasion of invoking provisions of Section 194H, since the amount is not paid by the assessee. 47. Taking into account the conclusion which has been arrived at by the Tribunal is misdirected in view of the arrangement which has been arrived at between the company and the Distributo....
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....f retailer and will reduce the margin from 10% to anything between 1% to 10%. There is no restriction by the assessee to give commission amount to the retailer. (iv) Regarding area of operation, it is the business policy of the assessee to give Distributor-ship for a particular area. Only on that basis, it will be erroneous to held that it is on Principal to Principal basis. For deciding the relation-ship on Principal to Principal basis, the criteria will not be of area of operation but agreement entered into between the parties. (v) Regarding the change in price it is always between the assessee or the company and the Distributor to decide who will absorb the loss. In that view of the matter, the findings arrived at by the Tribuna....