TaxTMI 
TaxTMI 
2021 (9) TMI 772
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....p companies Infrastructural services under the category of Business Support Services ('BSS') May 2006 to September 2010 Rs. 1,03,40,124/- confirmed out of Rs. 1,17,45,757/- (Rs. 14,05,633/- dropped on account of wrong application of Section 72 of the Act) 2. Transfer of employees group companies Manpower Supply Services October 2005 to September 2010 Rs. 23,07,497/- 3. Non-payment of service tax on accrual basis of 'income accrued but not due' from Associated Enterprises Not specified 10 May 2008 to September 2010 Rs. 2,27,95,269/- (By letter dated 29.01.2019, the Assistant Commissioner has issued a compliance report wherein payment of Rs. 2,27,72,925/- has been acknowledged.) 4. Short payment of Service Tax as per gross value mentioned in ST-3 return Not specified May, June and August 2006 Demand dropped on merits 5. Wrongful adjustment of Service Tax under Section 6(4A) of the Rules Not specified November 2005 to March 2007 Demand dropped on merits 6. Difference between ST-3 & Balance Sheet Not specified April 2006 and March 2007 Rs. 2,14,001/- 7. Wrong Availment of CENVAT Credit Not applicable ....
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.... and 7 of the Table contained in paragraph 2 of this order. It needs to be noted that the demands in respect of issues at serial nos. 4 and 5 have been dropped, while with regard to the issue at serial no.3, the amount with interest has been paid and the appellant does not dispute this demand. 6. Each of the issues shown at serial nos. 1,2,6 and 7 will now be considered separately. Service tax under BSS on the transit house income 7. The appellant owns guest houses at various places and allows them to be used by employees of group companies while on official tours. For such use, the appellant charges its group companies and issues debit notes. Some portion of guest houses are also used for residence of employees of the appellant, in addition to those of its group companies. The appellant recovers electricity and maintenance charges from such employees, which also form part of transit house income in the books of accounts and according to the appellant it is not susceptible to service tax as the same would be service to self. The appellant contends that these submissions, corroborated by relevant invoices, were made before the Commissioner in reply to the show cause notice, but ....
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..... Quippo Oil and Gas Infrastructure Ltd. vs. Commissioner of Service Tax, New Delhi [2020 (11) TMI 437- CESTAT New Delhi]; b. Global Coal & Mining Pvt. Ltd vs. Commissioner of Service Tax, Delhi [2020 (36) GSTL 77 (Tri.-Del.)]; c. Malviya National Institute of Technology vs. Commissioner of Service Tax, Jaipur [2019 (28) GSTL 472 (Tri.- Del.)]; and d. Indian National Shipowners Association v. Union of India [2009 (14) STR 289 (Bom.)]. 11. This submission advanced by learned counsel for the appellant has not been accepted by the Commissioner and the observations in this regard are as follows: "I find that the fact that the noticee have now got registered with the Service Tax department under the new service of Guest House in Act, w.e.f. May 01, 2011, does not alter the Service Tax liability of the noticee under the category of Business Support Services as the activities undertaken by the noticee to the employees of the group companies were only with respect to their official visits, therefore, were in the nature of Infrastructural Support services. In other words, said transit houses were not merely providing accommodation as in the case of 'Guest House' services that to ....
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....of certain services in that entry would pre-suppose that there was no earlier entry covering the said services. It was also observed that creation of the new entry was not by way of amending the earlier entry and it was not carved out of any earlier entry. The relevant portion of the judgment of the Bombay High Court is reproduced below:- "37. Entry (zzzzj) is entirely a new entry. Whereas entry (zzzy) covers services provided to any person in relation to mining of mineral, oil or gas, services covered by entry (zzzzj) can be identified by the presence of two characteristics namely (a) supply of tangible goods including machinery, equipment and appliances for use, (b) there is no transfer of right of possession and effective control of such machinery, equipment and appliances. According to the members of the 1st petitioner, they supply offshore support vessels to carry out jobs like anchor handling, towing of vessels, supply to rig or platform, diving support, fire fighting etc. Their marine construction barges support offshore construction, provide accommodation, crane support and stoppage area on main deck or equipment. Their harbour tugs are deployed for piloting big vessels i....
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....services and cannot be treated as provision of BSS. 17. In this connection, reference can be made to the decision of the Tribunal in Air Liquide North India Pvt. Ltd. vs Commissioner of Central Excise, Jaipur [2017 (4) G.S.T.L. 230 (Tri.-Del.)] and the observations are as follows: "8. In the present case, the admitted facts are that the appellant engaged in the manufacture and sale of various types of industrial gases. They have entered into agreement with various clients for sale of such industrial gases. In respect of some of the clients they have also entered into separate agreements to provide certain plant and machinery or mostly, gas storage facilities along with necessary accessories. We have perused some of these agreements. In case of supply of equipments, plant and machinery, the appellants are entering into of lease agreement and the consideration is termed as 'lease rental charges'. In most of the cases, the appellants are engaged in providing gas storage facility along with connected accessories. The agreements entered into for putting up these facilities at the client's premises are co- terminus with sale and purchase agreement for supply of gas. This makes ....
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..... In certain situations the nature of included items would not only partake of the character of the whole, but may be construed as clarificatory of the whole. In the present case even considering the explanation for infrastructural support service is only defined in an inclusive way, still it will not be incorrect to hold such inclusive definition will throw light upon what are all the nature of services which are sought to be taxed." (emphasis supplied) 18. The aforesaid decision of the Tribunal was upheld by the Rajasthan High Court in Commissioner of Central Excise and Service Tax, Alwar vs. Air Liquide North India P. Ltd. [2019 (27) GSTL 194(Raj.)] 19. Thus, for the reasons stated above, the Commissioner was not justified in confirming the demand on the amount received for transit house under the category of BSS. Manpower supply services 20. The impugned order has confirmed the demand of service tax against the appellant under the category of 'manpower recruitment and supply agency service' on the ground that the appellant was supplying manpower to its group companies. 21. According to the appellant, it deputes its employees to the group companies. In such cases, the ....
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....her person 24. After relying upon the earlier decisions of the Tribunal and the High Court, the Tribunal in Lowe's Services India set aside the demand raised by the Department under the category of manpower recruitment. 25. The following decisions relied upon by learned counsel for the appellant have also taken the same view: a. Mikuni India Pvt. Ltd. vs. Commissioner of Central Goods and Service Tax, Customs & Central Excise [2019 (8) TMI 8- CESTAT New Delhi]; b. Indian Yamaha Motor Private Limited vs. Commissioner of Central Excise & Service Tax, New Delhi [2019 (7) TMI 772- CESTAT New Delhi]; c. Mikuni India Pvt. Ltd vs. Commissioner of Central Goods and Service Tax, Customs & Central Excise [2019 (8) TMI 260-CESTAT New Delhi] ; d. Punj Lloyd Ltd. vs. Commissioner of Service Tax, Delhi [2019 (22) GSTL 85 (Tri.- Del.)]; e. Commissioner of Serivce Tax vs. Arvind Mills Ltd. [2014 (35) STR 496 (Guj.)]; and f. Spirax Marshall P. Ltd. v. Commissioner of Central Excise, Pune-I [2016 (44) STR 310 (Tri.- Mumbai) maintained by Supreme Court of India in 2016 (44) STR J153 (SC)]. 26. In view of the factual position stated above and the decisions referred to above, it has t....
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.... sustained. Wrong availment of credit 31. The impugned order has confirmed the demand of CENVAT credit for the months of April, 2006 and April, 2008 on the ground that the closing balance as per Service Tax-3 returns in the months of March, 2006 and March, 2008 was NIL. 32. The findings recorded by the Commissioner in the impugned order on this issue are as follows: "I have gone through the facts of the case and various submissions made by the noticee and find that copies of the Ledger Accounts etc. produced by the noticee are mere un-authenticated and un-attested computer generated print outs and cannot be relied upon to accept the claim of the noticee that there was some balance of Cenvat Credit as on 31.03.2006 and also on 30.09.2008 instead of NIL balance shown themselves in the ST-3 Returns. In the absence of any documentary evidence and any Chartered Accountant Certificate confirming and certifying the said figures as closing Balance of Cenvat Credit, the plea of the noticee cannot be considered. In view of the above, I disallow the Cenvat Credit amounting to Rs. 3,53,483/-( Rs. 1,12,182/- and Rs. 2,41,301/-) and confirm the demand of Rs. 3,53,483/- in respect of this is....