TaxTMI 
TaxTMI 
2025 (5) TMI 1911
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....t is vested with the exclusive privilege of wholesale distribution as well as retail vending of Indian Made Foreign Liquor (IMFL) in the State of Tamilnadu as per the provisions of Tamil Nadu Prohibition Act, 1937. The Appellant has various shops (Retail Outlets) and many of them have Bars attached to them. The Appellant is authorized by the State Government to float tenders for allowing selling of eatables in the Bar located within or adjoining the TASMAC shops, and also to collect the empty liquor bottles left by the patrons in the Bar. In lieu of such Licence given, the successful bidders (Contractors / Operators) have to pay a Licence Fee. 2.2 The Department was of the view that such issuance of Licence permitting contractors to conduct their Business within the Bar tantamount to service as defined under Section 65B(44) of the Finance Act, 1994, for which the License fee paid by the Contractors was the consideration. It was also observed that such service is neither covered under the Negative list as specified under Section 66D of the Finance Act, 1994, nor is covered under the mega Exemption Notification No. 25/2012-ST dated 20.06.2012. Department therefore issued Show Caus....
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....40054-40061/2025 dated 09.01.2025]. 4. The Ld. Authorized Representative Ms. Rajini Menon appeared and argued for the Department. She reiterates the findings in the impugned orders. 5. We have heard both sides, perused the appeal records and also the earlier orders of this Tribunal submitted as relied upon. 6. We note that in the Appellant's own case vide [F.O.Nos. 41015-41047/2018 dated 03.04.2015], the Tribunal has held as under: - "6.8 However, the position changes after the introduction of the Negative List regime w.e.f. 1.7.2012, from which date the activities which were liable to service tax under Finance Act, 1994 were given a much wider and broad banded scope in Section 65B (44) as under : "(44) "service" means any activity carried out by a person for another for consideration and includes a declared service, but shall not include- (a) an activity which constitutes merely,- (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitut....
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....cannot be brought on par with sovereign function exercised by the State. In fact, even from the copies of the audited balance sheets of TASMAC submitted along with the appeal, we find that the balance sheet has been prepared and audited only in terms of Section 227 (4A) of the Companies Act, 1956 and in terms with the accounting standards referred to in Section 211 (3C) of the Companies Act, 1956. Even the Supplementary Audit conducted by the Comptroller and Auditor General of India of TASMAC has been carried out in terms of Section 619 (3) (b) of the Companies Act, 1956 only. The activities of TASMAC for most of the period under dispute cannot therefore be said to be activities assigned and performed by sovereign / public authority under the authority of law. 6.12 We find that this aspect has been also clarified by the CBEC in Master Circular No.96/7/2007-ST dt. 23.08.2007, which is further reiterated by Circular No.89/7/2006 dt. 18.12.2006 where it is inter alia clarified as follows : "However, if a sovereign / public authority provides a service, which is not in the nature of statutory activity and the same is undertaken for a consideration (not a statutory fee....
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.... corporation or an authority are normally created by the Parliament or a Stage Legislature in exercise of the powers conferred under article 53 (3) (b) and article 154 (2) (b) of the Constitution respectively. It is a settled position of law Government (Agarwal v. Hindustan Steel - AIR 1970 Supreme Court 1150) that the manpower of such statutory authorities or bodies do not become officers subordinate to the President under article 53 (10 of the Constitution and similarly to the Governor under article 154 (1). Such a statutory body, corporation or an authority as a juristic entity is separate from the state and cannot be regarded as Central or State government and also do not all in the definition of 'local authority. Thus regulatory bodies and other autonomous entitled which attain their entity under an act would not comprise either government or local authority." 6.16 At the same time, we take note that in exercise of the powers conferred by sections 17-C, 17-D, 21 and 22-D read with Section 54 of Tamil Nadu Prohibition Act, 1937, in Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003 was amended by insertion of Rule 9A w.e.f. 29.03.2013 as follows ....
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....interpretation and even from the record, we find that there are at least two circulars before introduction of negative list regime and one subsequent to that, which have found it necessary to dwell upon the liability to service tax in respect of such activities performed by instrumentalities of the State. We also find that the issue of liability to tax in respect of such activities was also subject matter of litigation as evidenced from number of High Court judgements that have been cited supra. In this scenario, there cannot be any penalty imposed on the appellant. So ordered. 6.19 To sum up, For the period October 2008 to 30.06.2012, the demand of service tax on the appellant under 'Support of Business and Commerce Services' is not sustainable and is set aide with consequential benefit, if any, as per law. There shall be service tax liability on the appellant for the period 1.7.2012 to 28.03.2013 under the provisions of Section 65B (44) read with other relevant provisions of the Finance Act, 1994. There will not be any service tax liability during the period of dispute from 29.03.2013 onwards. Penalties ....