TaxTMI 
TaxTMI 
2024 (2) TMI 1086
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....ass, Senior Advocate For Shri. G.L. Mohan Maiya, Advocate For the Respondent : By Shri. Jeevan J. Neeralgi, AGA JUDGMENT All these appeals involve common questions of law. Hence, they are disposed of by this common order. 2. Learned Advocate adverted to records in CEA No. 30/2021 filed by the assessee, directed against order dated July 07, 2021 in Final Order No. 20372-20402/2021 passed by CESTAT [Customs, Excise, Service Tax Appellate Tribunal]. Though this appeal has been admitted to consider 8 questions of law, at the time of hearing Shri. Shivadass, learned Senior Advocate submitted that following three questions only are relevant and has addressed arguments on those questions: 1. Whether the CESTAT has erred in hol....
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....liable to pay service tax because: * assessee was not covered within the definition of a 'person' as defined under the Act; * assessee is not providing any service to the contributors; and * assessee is not receiving any consideration from the contributors. 6. The proposal of demand was confirmed by the Commissioner of Service Tax, Bangalore North vide OIO [Order-in-Original] dated 27.02.2012. On appeal, the CESTAT has confirmed the demand. Hence, this Appeal. 7. Shri. Shivadass, learned Senior Advocate for the assessee, submitted that: * assessee did not provide any service to the contributors; * investment manager provides service of asset management to the contributors; * assess....
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....continental Consultants and Technocrats Private Limited 2018 (10) G.S.T.L 401 (S.C); vi. Prathibha Pratishtan Vs. Canara Bank (2017) 3 SCC 712; vii. State of West Bengal Vs. Calcutta Club Limited 2019 (29) GSTL 545 (S.C). 9. Opposing the appeal, Shri. Neeralgi, for the Revenue submitted that: * the instant appeal is not maintainable as the issue involves rate of duty and as per Section 35L of the CE Act, appeal shall lie before Supreme Court for determination of any question with regard to the rate of duty; * the fund accepts money from investors and makes profit by re-investing and distributes the profits to investors; and retains some portion of the same to its benefit; * assessee's funds ar....
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....the Hon'ble Supreme Court under Section 35L of the CE Act. It is settled that except an appeal involving the rate of duty, all other appeals are maintainable before the High Court. (See: Commissioner of Central Excise, Hyderabad Vs. M/s Shriram Refrigeration Industries 2022-VIL-76-SC-CE, para 6). Revenue's specific case is that assessee is liable to pay the service tax. Assessee has denied the liability. In Shriram Refrigeration, it is held as follows: "6. It is required to be noted that the question was whether respondents were liable to pay the Central Excise duty or not. The question is/was whether the respondents can be said to be manufacture of stators or not and therefore liable to pay central excise duty or not. The aforesai....
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.... contention urged by Shri. Neeralgi is untenable. 16. The CESTAT has recorded in para 37.4 of the impugned order that, since the trust is treated as juridical person under SEBI, there is no reason why it should not be treated as a juridical person for taxation. This view of the CESTAT is untenable because, for the purpose of levy of tax, the entity has to be recognized under the said Act. 17. Accordingly, we answer the first question as affirmative and in favour of the assessee. Re: Question No.(ii) 18. It was argued by Shri. Shivadass that assessee-trust was created by the settlor-ICICI Venture Funds Management. Assessee Trust collects funds from entity like LIC, SBI etc. Based on Investment Manager's advise the trusts invest i....
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...., imposition of Service tax is untenable. We find merit in this argument because, the assessee acts as a 'pass through', wherein funds from contributors are consolidated and invested by the investment manager. It acts as a trustee holding the money belonging to contributors to be invested as per the advice of the investment manager. 22. Accordingly, we answer the second question in the affirmative and in favour of the assessee. Re: Question No.(iii) 23. It is not in dispute that contributors are institutional investors. We may note that doctrine of mutuality applies when commonality is established between the contributors and participators. In the instant case, the contributors and the trust cannot be dissected as two different ent....