TaxTMI 
TaxTMI 
2021 (5) TMI 159
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....th interest and penalty on the trade discount received from the manufacturers by way of credit notes. The petitioner submitted their reply and also sought copies of the documents relied upon in the show cause notice. 3.The adjudicating authority also proposed to rely on an investigation report received from a subordinate official. Contending that the authority should not proceed with the adjudication process without furnishing a copy of the investigation report, the petitioner filed W.P.(MD)No.16037 of 2019. Vide order dated 03.09.2020, this Court had allowed the said writ petition and directed the adjudicating authority to make available the scrutiny report submitted by the Superintendent, Head Quarters Preventive Unit, Madurai to the petitioner. Thereafter, personal hearing was conducted and the impugned order dated 17.12.2020 came to be passed confirming the demand of Service Tax together with interest and penalty. Questioning the same, this writ petition came to be filed. 4.The respondent has filed a detailed counter affidavit and the learned Standing counsel took me through its its contents. 5.The stand of the respondent is three-fold. The writ petition as such is not....
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....on, it would be necessary to run through the relevant statutory provisions. Section 66B of the Finance Act, 1994 is the charging provision. It reads as follows:- "66B. Charge of service tax on and after Finance Act, 2012 There shall be levied a tax (hereinafter referred to as the service tax) at the rate of fourteen percent. on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed." 9.Section 66D of the Act contains the negative list of services. Services from (a) to (q) have been set out. The case of the petitioner is that they fall within Section 66D(e) of the Act. As per the said provision, "trading of goods" is a service that is included in the negative list. On the other hand, the stand of the respondent is that the petitioner's case would fall within Section 66E(e) of the Finance Act, 1994 which reads as follows:- "66E. Declared services. The following shall constitute declared services, namely:- ... (e) agreeing to the obligation to refrain from an a....
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....money or actionable claim, including the activity carried out (a) by a lottery distributor or selling agent on behalf of the State Government, in relation to promotion, marketing, organising, selling of lottery or facilitating in 7 organising lottery of any kind, in any other manner, in accordance with the provisions of the Lotteries (Regulation) Act, 1998;. (Finance Act 2016) (b) by a foreman of chit fund for conducting or organising a chit in any manner.; Explanation 3. - For the purposes of this Chapter,- (a) an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons; (b) an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. Explanation 4. - A person carrying on a business through a branch or agency or representational office in any territory shall be treated as having an establishment in that territory;" 11.A mere perusal of the aforesaid definition would indicate that there must be (i) service provider, (ii) service recipient and (iii)....
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.... obligation between the applicant and the Media Owner to give volume discount is not fixed and is to be given at the discretion of Media Owner. Further, volume discount is gratuitous. Applicant/Advertising Agencies cannot claim it as a matter of right. Therefore, applicant is not providing declared services to the media Owner." I am inclined to adopt the very same reasoning to the present case also. 14.The learned Senior counsel would further contend that an agreement will have to be read as a whole and that the individual clauses occurring in the agreement cannot be torn out of context. In this regard, he placed reliance on the decision of the Supreme Court reported in 2008 (10) S.T.R. 545 (SUPER POLY FABRICKS LTD., V. COMMISSIONER OF C. EX., PUNJAB). In the aforesaid decision, the Supreme Court held that there may not be any doubt whatsoever that a document has to be read as a whole. The purport and object with which the parties thereto entered into a contract ought to be ascertained only from the terms and conditions thereof. Neither the nomenclature of the document nor any particular activity undertaken by the parties to the contract would be decisive. 15.Applying the ....