TaxTMI 
TaxTMI 
2024 (10) TMI 1258
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....y the appellant is not a statutory function but it is a private business activity, therefore, the same is liable to service tax. 3. Shri Saurabh Dixit, learned counsel appearing on behalf of the respondent submits that First Appellate Authority has rightly quashed the demand on the ground that a) the activity undertaken being discharged of statutory obligation, no service tax is applicable thereon. The nature of activity does not fall within the scope of business support service as alleged by the Revenue, he submits that discharging such sovereign function is outside the purview of service tax and cannot be subject to levy of service tax at all. He placed reliance on the following judgments : a) Instrumentation Ltd. 2016 (45) STR 182 (Tri. All.) b) CST, Hyderabad vs C.S. Software Ent. P. Ltd. 2008 (10) STR 367 (T) c) CCE vs UTI Tech. Services Ltd. 2014 (36) STR J 116 (Bom) d) CCE vs CMC Ltd. 2007 (7) STR 702 (T) He submits that the Revenue in their appeal has completely misunderstood the legal position inasmuch as it states that it is only when Government body itself provides any service than service tax is not payable whereas in the above cases, the activity was car....
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....to different person as in the present case is weighbridge statutory obligation has been assigned to the respondent. Therefore, being a statutory obligation, the same cannot be taxed as held in various judgments cited by the learned counsel for the respondent. Some relevant judgments are reproduced below: Food Corporation of India 2023 (8) TMI 538-CESTAT Chand. "M/s Food Corporation of India (FCI), Kurukshetra, the appellants procure grain through State Government Agencies like HALFD, CONFED, HAIC and HWC etc. and also directly from the millers; at the time of unloading the grains, in the godowns of FCI, the appellant FCI causes the weighment of the trucks irrespective of whether or not the trucks were weighed earlier by their suppliers or not; the appellant deducts charges, for such weighment, in the payments made to the agencies, supplying grain. Revenue opined that the weighment charges, collected by the appellants, from their customers, charges constitute the consideration for the "Business Auxiliary Service" alleged to have been rendered by the appellants. Revenue issued a show cause notice, dated 08/12/2008, seeking to recover service tax of Rs. 4,70,059/-, for the period ....
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.... be said that the weighment is a service, leave alone Business Auxiliary Service; deduction of weighment charges is not a consideration towards any service rendered. We find that the appellants are deducting certain charges, in addition to weighment charges, towards the allowance for moisture if any. 4. We find that the Tribunal, in the case of Northern Computer (supra), relies on Deepak Computers and others Final Order No. ST/151 to 185/2008 dated 24/06/2008, in which Tribunal observed as follows ; "We find that in these appeals the respondents are owner of Dharamkanta and they are undertaking the weighment of the goods. We find the Business Auxiliary Service means any service in relation to promotion or marketing or sale of goods produced or provided by or belonging to clients. As respondents are not concerned with the sale or marketing of the goods, therefore, cannot be said to be provider of incidental or auxiliary service to any activity such as promotion or marketing or sale of goods produced. In these circumstances, we find no infirmity in the impugned orders. The appeals are dismissed". 5. In view of the above, we find that the impugned order cannot be sustained an....
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....s on the ground that respondents are providing Business Auxiliary Service in relation to marketing of goods. The Adjudicating Authority confirmed the demand. The Commissioner (Appeals) in the impugned order held that the respondents are not at all provided any service with regard to promotion or marketing or sale of goods as they are not concerned with goods nor with marketing or selling the goods. The respondents do not have any interest in the sale on or marketing of the goods or in the nature of goods to be weighed. The respondents do not even know whether the goods under weighment are for sale or for captive consumption. 3. The contention of Revenue in the present appeal is that without weighment of goods, the goods cannot be sold in the market. For sale of goods the weighment is necessary requirement and without ascertaining the weight of goods the sale is not possible. It is also submitted by Revenue that Business Auxiliary Service means any service in relation to promotion or marketing or sale of goods produced. A service incidentally or auxiliary to promotion or marketing is also included in the Business Auxiliary Service. As the respondents are providing a service incid....