2024 (10) TMI 11

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.... services as mentioned above. Investigation was conducted and various documents were collected. After scrutiny of the documents and records, a Show Cause Notice seeking to confirm demand of service tax of Rs.72,48,491/- along with interest and penalty was issued to the appellants while proposing to appropriate amount of Rs.4,24,642/- deposited by the appellants during the investigation. Learned Commissioner vide impugned order dated 30.03.2012 confirmed the demand of Rs.65,14,9741/- along with interest and equal penalty under Section 78 and a penalty of Rs.5000/- under Section 77. Hence, this appeal. 2. Shri Vikrant Kackaria, learned Counsel for the appellants, submits that the demand is mainly as shown below: Service Provided Service Tax demanded in Rs. "Support Services of Business or Commerce" 56,74,783/- "Renting of Immovable Property Services" 4,00,281/- "Selling of Space for Advertisement Services" 11,783/- "Manpower Recruitment or Supply Agency Service" 10,55,183/- "Management, Maintenance and Repair Services" 1,06,461/- Learned Counsel submits that out of the above, demands at Row No.3 & 4 have been paid before issuance of Show Cause Notice and are not being d....

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....sion of any documents like contracts etc. and the same may be obtained from respective Government Departments; department procured some documents but the same was not supplied to the appellants; Department has relied upon a few invoices which show the work to be Sanitation work and not Manpower supply; he submits that Tribunal held in the following cases that service tax can only be charged when the charges recovered are on the basis of number of persons and not on work basis. He relies on the following cases: * Tiwari Services- 2020 (37) GSTL 57 (Tri. Mumbai) * Gokul Ram Gurjar - 2018 (19) GSTL 269 (Tri. Del.) * Shailu Traders - 2018 (10) GSTL 462 (Tri. Del.) 5. Learned Counsel further submits that amount of Rs.1,06,461/- was demanded incorrectly on Management, Maintenance and Repair Service; the work which was performed by the appellant was in connection of roads and railways and not any commercial construction; it is exempted by Notification No.24/2009-ST dated 27.07.2009. He also submits that the Adjudicating Authority has not given the benefit of Notification No.06/2005-ST dated 01.03.2005 during the financial year 2005-06, though, the total taxable income was Rs.4 Lakh....

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.... the appellants submits that in terms of the contract and as accepted by the Department, Adda Fees being collected from the buses on entry to the bus stands for various diverse services being provided by the noticee to other bus operators such as providing counters for selling tickets related to infrastructure for parking of buses etc. He submits, therefore, that the service cannot be said to be Business Support Service. 9. Heard both sides and perused the records of the case. As regards the demand of service tax on "Adda Fees", we find on going through the contract with the Punjab Roadways, the appellants are collecting the same. The appellants are paying a certain fixed sum to the Government. They are retaining the entire amount collected from the bus operators. In lieu of the consideration received from the bus operators, they are providing infrastructure for parking of the vehicles, roads, ticket counters, resting facilities etc. inside the premises. To this extent, we find that the Department's contention that the appellants are providing "Business Support Services" to the bus operators. Though, the provision of parking spaces for public transport may be part of the sovereign....

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....er, service receiver, the service provided and the remuneration received are established, demand of service tax cannot be sustained. Coming to demand of service tax on "Management, Maintenance and Repair Service", we find that the appellant submits that they have undertaken the work with respect to construction of roads/ railways and not in respect of any commercial enterprise and the same is exempt vide Notification No.24/2009. We find that the Department did not controvert the submissions of the appellants and have not established as to which was the specific work they have undertaken. Effort has been made to confirm the demand on the basis of entries in the books of accounts. We find that Tribunal held in many cases that such a confirmation is not acceptable. 12. Further, we find that the appellants have submitted that during the year 2005-06, the benefit of small-scale exemption contained under Notification No.06/2005 has not been extended and that benefit of CENVAT credit has also not been extended. We find that these two benefits which are due to the appellants cannot be denied to them. Further, we find that extended period has been invoked in a routine manner. As submitted ....