TaxTMI 
TaxTMI 
TaxTMI 
2024 (8) TMI 1604
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....tly, Apollo Hospitals Enterprise Limited took over the share of Duncan Industries Limited, Kolkata and the Joint Venture is re-named as the appellant herein. 2.1 The appellant was engaged in providing taxable services named as "Renting of Immovable Property Services" under Section 65 (105)(zzzz) and "Health Services" under Section65 (105)(zzzzo) of the Act and an internal audit was conducted for the period 2007-08 to 2011-12. The said audit party raised an objection for non-payment of service tax on commission received from pharmacy, import of taxable service and certain items, which is considered to fall under the "Business Auxiliary Service" and the short payment of service tax on "Renting of Immovable Property Service". 2.2 On the basis of audit, a show-cause notice dated 18.10.2012 was issued to the appellant by invoking extended period of limitation for the period 2007-08 to 2010-11 to demand service tax as mentioned below along with Education Cess and Higher Education Cess. 2.3 The demands against the appellant were raised under the following headings : Issues Particulars Amount (Rs.) 1. Rule 6(3)(ii) of Cenvat Credit Rules, 2004 62,75,162/- 2. Opening Balance of C....
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....ing any exempted output service - Since the Appellant has utilised full credit only in respect of those input services specified in Rule 6(5) of CCR 2004, it is held that the Appellant has rightly availed and utilized the CENVAT Credit as provided under Rule 6(3)(c) and Rule 6(5) of the CENVAT Credit Rules, 2004. Accordingly, the demand confirmed in the impugned order on this count is not sustainable." Issue 2 The return was filed in the ACES with an opening balance of Rs. 59,83,506/- (originally) on 24.12.2011 which was revised on 17.04.2012 in which the opening balance was finally disclosed as "Nil". The manually revised ST-3 return was submitted and received by department on 18.04.2012. From the date of filing of returns it is very much evident that the returns were revised as there was no separate space available in the return to declare whether the return was original/ revised. Hence, the Ld. Commissioner has grossly erred in observing that the said return does not appear as 'revised return'. Issue 3 Extract of agreement between AGHL and CINRC "Both parties to the agreement above i.e. AGHL and CINRC will endeavour to give and provide each other all requisite fa....
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....rvice." The CESTAT AHMEDABAD in the case of M/S AIA ENGINEERING VERSUS THE COMMISSIONER, ST. - AHMEDABAD reported in 2014 (12) TMI 241 - CESTAT AHMEDABAD wherein the bone of contention between the dept and the appellant is an amount which has been offered as discount to the appellant by WSL on the transactions of sale of Grinding Media to ACC Jharkhand. The Tribunal held that "the appellant has recorded the transactions between them and WSL as a purchase transaction and transaction between them and ACC as sales transaction for the goods delivered by WSL to ACC directly from Karnataka to Jharkhand. The entire transactions as reproduced by us herein above indicates that the said transactions is nothing but an activity of purchase and sale of the goods. Adjudicating Authority has not correctly appreciated the positions of Section 6 of the CST Act in as much as, on perusal of said section, we note it provides interstate sales transactions effected by transfer of documents of title to such goods during the movement from one state to another. In the case in hand, the goods moved from Karnataka to Jharkhand the transfer of documents took place during such movement is not in dispute. ....
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....Sl. No. Taxable Service Challan Date Challan No. Amount Paid 1. BAS 28.09.2012 00034 8,16,533 Renting 74,179 2. BAS (includes amount of Rs. 2,19,774/- paid for excess CC claimed) 04.10.2012 00455 3,32,979 3. BAS 19.10.2012 00029 5,27,453 Renting 16,361 Health care 2,19,774 4. BAS 10.04.2013 00036 2,48,221 Total Tax paid 22,35,498 Less: Paid for Excess CC claimed 2,19,774 Service Tax Paid 20,15,724 5. Interest 19.10.2012 00031 1,50,066 Issue-7 : Demand Time Barred The period involved is 2007-08 to 2011-12 whereas the impugned Show Cause Notice was issued on 19.10.2012. The demand for the period 2007-08 to 2010-11 is hence time barred. The impugned Order claims that the appellant has violated the provisions of the Service Tax law with an intention to evade payment of service tax. There is no suppression or misstatement in the returns filed. 4. On the other hand, the ld. A.R. for the Revenue, supported the impugned order and argued that some of the demands are sustainable against the appellant. 5. Heard both the parties and considered the submissions. 6. We find that the demand has been raised against the appellant under the following hea....
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.... (zzd), (zzg), (zzh), (zzi), (zzk), (zzq) and (zzr) of clause (105) of section 65 of the Finance Act shall be allowed unless such service is used exclusively in or in relation to the manufacture of exempted goods or providing exempted services". From the above, we observe that Rule 6(5) is an exception to the other provisions of Rule 6. Full credit can be availed and utilized in respect of the common input services specified in Rule 6(5) of the CENVAT Credit Rules, 2004. The only condition is that the said input services should not be exclusively used in the manufacture of exempted goods or providing exempted services. In the present case, we observe that the Appellant has been providing output services such as 'Business Auxiliary service', Storage and Warehousing Service', and 'Maintenance and Repair Service' and paying service tax on them. Thus, it is evident that the credit availed on the input services have not been used exclusively for providing any exempted output service. We also find this is not the allegation in the Notice. The Notice generally alleges that the Appellant cannot use CENVAT Credit availed on common input services over and above 20% as pre....
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....s extracted herein below : as on the verification of the records, we find that there is no opening balance of cenvat credit on 01.04.2011, therefore, in fact, no evidence has been adduced by the Revenue that the said cenvat credit showing as opening balance, has been utilized by the appellant. 12. In the circumstances, the demand on account of opening balance of cenvat credit declared in ST-3 Return in the month of April, 2011, of Rs.6,33,41,238/-, is not sustainable against the appellant. Accordingly, the same is dropped. 13. Therefore, Issue No. (2) is answered in favour of the appellant. Issue No. (3) Renting of Immovable property service and business auxiliary service w.r.t. sharing of revenue with CINRC and ADCPL and parking fees 18,77,322/- 14. We find that the appellant has an arrangement for MRI and Dental Divisions, where the Experts were paying for MRI Scanning and providing Dental treatment. The appellant is a Joint Venture for providing sharing the amount received by the appellant. In case of MRI Scanning, the appellant retained 5% of the total amount received by them and in case of Dental, the appellant retained 20% of the amount recovered from the patients. The....
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....her. In this connection, reliance can be placed to the decision of the Tribunal in Mormugao Port Trust." 17. We, therefore, hold that on the amount recovered as Parking Charges and the amount retained by the appellant for MRI and Dental services, the appellants are not liable to service tax under heading "Renting of Immovable Property Service". Accordingly, the demand of Rs.18,77,322/- is dropped. 18. Therefore, Issue No.(3) is also answered in favour of the appellant. Issue No. (4) Commission on sale of medicines and consumables from AHEL 3,39,53,020/- 19. The demand has been raised against the appellant for commission on sale of medicines and consumables from the appellant to the tune of Rs.3,39,53,020/. 20. We find that for in house patients, the appellant purchased medicines and getting discount on the medicines and consumables from the patients. The Revenue is of the view that the discount received by the appellant is a commission received by the appellant for promoting and marketing or selling of the medicines on behalf of the Pharmacy. 21. We find that the appellant is receiving discount and various incentives on the purchase of medicines from the Pharmacy, which is ....