TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 260
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....hpur (Raj.) wherein the demand of service tax of Rs.2,63,104/- was confirmed along with interest and penalty under section 77 (2) and section 78 of the Finance Act, 1994 [the Finance Act]. 2. Brief facts are that the appellant had rented out godown for consideration to Rajasthan State Warehousing Corporation for warehousing agricultural produce during the period 2012-2013. The appellant failed to pay any service tax against such renting service provided by him. The department opined that such renting of immovable property was taxable under Section 65(90a) read with Section 65(105)(zzzz) of the Finance Act, 1994 prior to 01.07.2012. From 01.07.2012, the said service was covered as Declared Service under section 66E (a). Since the appellan....
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.... without a structure incidental to its use, is covered under the negative list. The appellant had also rented out their godown for warehousing of wheat (agricultural produce), which was covered under the negative list. Further, RSWC was engaged in warehousing of agricultural product, viz., wheat as was apparent from the letter dated 20.06.2012, and the godown renting report. 4. Learned counsel further submitted that the appellant was also responsible for pest control services in the godown (which is clear from godown renting report) which indicates that the appellant was required to ensure safety of agricultural product stored in the godown. Hence, the appellant was not only engaged in renting of godown, but were also required to ensure ....
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....ant had not collected any tax from service recipient under this belief. Even service recipient, a State Government Undertaking had opined that service tax was not payable on renting, as the same was covered under negative list. 6. Learned Authorized Representative for the Department stated that the appellant had not rented any vacant land having a structure like storage shed or a green house built on it which is incidental to its use for agriculture. The appellant had rented the godown/warehouse and such renting of immovable property service was provided to M/s. Rajasthan State Warehousing Corporation (RSWC) which did not fall under the entry no. (iv) of the section 66D of the Finance Act, 1994. Learned Authorised Representative further ....
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....etc. and hence mere renting of space cannot be said to be in the nature of service provided for storage or warehousing of goods. He contended that the essential test was whether the storage keeper had provided for security of goods, stacking, loading/unloading of goods in the storage area, which was absent in the present case. As regards cum tax benefit, learned Authorised Representatives stated that the benefit of cum tax could not be extended as the appellant had failed to produce any documentary evidence that the gross amount changes for provision of service is inclusive of service tax. 9. We have heard Shri O.P.Agarwal, learned Chartered Accountant for the appellant and Shri Rajeev Kapoor, learned authorized representative for the De....
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....he fact that appellant leased out the godown/ warehouse for storage of agricultural produce. Hon'ble Apex Court in Krishi Upaj (supra) has held: "Agricultural Produce Marketing Committee - Service Tax in respect of shed/shop/premises leased out to traders/others for storage of agricultural produce in marketing area not payable, with introduction of Negative List Regime of Taxation w.e.f. 1-7-2012 - However, Negative List not covers activities of renting of immovable property for other than agricultural produce." In addition, the storage and warehousing of agricultural produce is not taxable being covered under section 66D (v) of the Finance Act, 1994. These observations sufficiently reveal that the appellant was under bonafide b....
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.... deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." 13. In the above context, we note that the department has not led evidence regarding any positive act on part of the appellant which may amount to suppression, with an intent to evade payment of duty. We draw support from Hon'ble Supreme Court's decision in Anand Nishikam Co. Ltd. vs. Commissions of Central Excise, Meerut- 2005 (188) ELT 149 (SC), wherein it was held that suppression of facts can have only meaning that the correct information was not disclosed deliberately to evade payment of duty when facts were known to both the parties....