TaxTMI 
TaxTMI 
2024 (3) TMI 1350
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....l Tax, Bangalore South Commissionerate. 2. Briefly stated the facts of the case are that the appellants are discharging Service Tax for rendering service as well as recipient of service. They also availed CENVAT credit on input services and utilizing the same in discharging their Service Tax liability. During the course of audit of the records, it came to the notice of the department that during the period July 2015 to September 2016, though they were trading in Mutual Funds but failed to discharge 6% / 7% of the value under Rule 6(3) of Cenvat Credit Rules, 2004 (CCR); also, the appellant has not paid Service Tax on the amount received from their employees for waiver of notice period on leaving the employment. Consequently, show-cause n....
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....sequently, the Sub-Rule (2) and (3) of Rule 6 of CCR, 2004 accordingly cannot be held to be applicable when subrule (1) itself is not attracted. 3.1 Further, he has submitted that an activity can qualify as a service only on existence of three essential elements viz., service provider, service receiver and a consideration for undertaking such activity. In the present case, all these essential elements to constitute service are completely absent; the activity is only investment in mutual funds and redemption thereof by the appellant. Therefore, there is no service provider, service receiver or a consideration involved in the said activity i.e., investment in mutual funds on their own account. Therefore, the investment in mutual fund also ....
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....s, there is no service in the instant case and accordingly, Service Tax demand is bad in law. In support, he has referred to the judgment of this Tribunal in the following cases: a. Rajasthan Rajya Vidhyut Prasaran Nigam Ltd. vs. CGST, Customs and Central Excise, [2022] 135 taxmann.com 6 (New Delhi - CESTAT) b. GET & D India Ltd. vs. Deputy Commissioner of Central Excise, [2020] 119 taxmann.com 55 (Madras) c. Amit Metaliks Ltd. vs. Commissioner of Central Goods & Service Tax, Bolpur, [2021] 127 taxmann.com 248 (Kolkata - CESTAT) d. Madhya Pradesh Poorva Kshetra Vidyut Vitran Co. Ltd. vs. Principal Commissioner CGST and Central Excise, Bhopal, [2021] 126 taxmann.com 181 (New Delhi - CESTAT) e. Raj....
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....ir surplus in mutual funds and not traded the same as securities. The Revenue considering such investment in mutual fund which later sold by the appellant, as trading in goods, accordingly is an exempted service, hence demanded 6% / 7% of the value under Rule 6(3)(i) of the CCR, 2004 as common input services were used in providing taxable services and exempted service. We find that this issue is no more res integra since considered in a series of judgments of this Tribunal. In Ace Creative Learning (P.) Ltd. case (supra), this Tribunal analyzing the provisions applicable to investment in mutual funds held as follows: "5. After considering the submissions of both the parties and perusal of the material on record, I find that the app....
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....of Accounts under the head "other income". Hence the question of invoking Rule 6 does not arise and I am of the view that Department has wrongly invoked the provisions of Rule 6(3) demanding the reversal of credit on the exempted services. I also find that substantial demand is timebarred as during the audit, the Department entertained the view that the appellant is engaged in providing the exempted services and consequently issued the show cause notice. The appellant has been filing the returns under the taxable service of 'Commercial Training and Coaching and has provided all the records to the Department during the course of investigation and has not suppressed any material fact from the Department and in view of the various decisions re....
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....n 65B (22) are not applicable for consideration of such activity as a service for the purpose of levy of service tax. Further, the amount received as compensation by the appellants cannot be equated with the term 'consideration' inasmuch as the latter is received for performance under the contract; whereas, the former is received, if the other party fails to perform as per the contractual norms. We find that the issue arising out of the present dispute is no more open for any debate, in view of the judgments relied upon by the learned Consultant for the appellants. The Hon'ble Madras High Court in the case of GE T & D India Limited (supra) has held that in absence of rendition of any taxable service, the amount received as consideration can....