TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 614
X X X X Extracts X X X X
X X X X Extracts X X X X
....dated 13.06.2014. Hence the scope of these Appeals pertain to the demands confirmed in the impugned Orders-In-Original in respect of 2 SCNs. 1.1 For ease of reference, various services, period involved and the demand thereof, are tabulated as below: - O-in-O Nos. 28 & 29/2017 dated 06.03.2017 Sl. No. Description of service provided Period Demand (Rs) 1. Web based access to profiles and retrieval (OIDAR services) April 2009 to June 2012 50,74,158 2. Matrimonial services July 2012 to March 2013 45,69,201 3. Outdoor Catering Service 2011-12 2012-13 to 19,30,766 4. Sale of space or time for advertisement (other than print media) service 2011-12 2012-13 to 2,63,479 5. Production programme of tv or radio service 2011-12 17,44,567 Total 1,45,82,171 O-in-O No. 46/2021 dated 30.11.2021 Sl. No. Description of service Period Demand 1 Matrimonial Services 2013-14 to June 2017 2,79,08,259 2 Catering Services 2013-14 2015-16 to 79,97,411 3 Mandap Keeper Services 2015-16 2016-17 to 2,95,983 4 Export of Television Rights 2013-14 2014-15 to 10,15,219 Total 3,72,16,872 2.0 Heard Shri. S. Jaik....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d a letter dated 22.01.2013 whereby, they appear to have informed about the details of payment and the balance thereof. Both these letters have been duly acknowledged on the respective dates and are also forming part of the RUDs in SCN No.166/2013. Referring to the above, the Ld. Counsel would submit that the trigger for investigation is itself the letter given by the appellants to the department disclosing the entire facts and hence, the Department cannot invoke the larger period alleging any suppression of facts against the appellants. 2.4 Notwithstanding the above argument on limitation, it was further argued that there is an inherent contradiction with respect to the classification of match making services in O-in-O No. 28&29/2017 dated 06.03.2017. It remains undisputed that all the various packages of match making services provided by the appellants would remain the same during the entire period of the dispute, i.e., 2009 till March 2013 which is the period covered in O-in-O No. 28&29/2017 dated 06.03.2017. The SCN as well as O-in-O No. 28&29/2017 dated 06.03.2017 have proceeded to classify the entire match making services for the period from March 2009 to June 2012 under OID....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... same set of facts and services. They would also fairly concede that the only new service rendered by them which was not part of the O-in-O No. 28&29/2017 dated 06.03.2017 period would be "mandap keeper services" wherein, the tax involved is Rs.2,95,983/- for the entire period. The Ld. Counsel would also submit that in respect of O-in-O No.46/2021 dated 30.11.2021, the adjudicating authority has gone beyond even the extended period of limitation namely 5 years, by erroneously computing the 'relevant date' as the date of return which was filed belatedly. In this connection, reliance is placed on the decisions of CESTAT in the following cases: - i. M/s. Right Resource Management - 2023 (11) TМІ 100 - СESTAT New Delhi ii. M/S. Clean Care Services - 2025 (8) TMI 75 - CESTAT Chennai. Ld. counsel would thus pray for setting aside both the OIOs and allow the Appeals. 3.0 Per contra, Shri M. Selva Kumar, Ld. Asst. Commissioner defended the impugned orders and reiterated the finding of the adjudicating authority in both the impugned Orders-in-Original. 3.1 Further, he would also file written submissions and emphasized that non-filing of ST-3 returns on time is a jus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rovide different packages which comprise of an advertisement in their proprietary printed books which are circulated with a specified periodicity, during the period of subscription. Such printed books will carry the particulars like the photograph of the prospective bride/bride grooms. Along with this, there are also few exclusive services where the founder/chairman of the appellant firm would provide private one-to-one consultation/marriage counselling to their elite customers. Apart from the above, there are also few low-priced services where the database is made available on the web, which are allowed to be retrieved for a subscription. It is the case of the Appellant that they were classifying such services where the subscriptions are for web-based database as OIDAR services and paying appropriate service tax during the relevant period. Now the moot question that bothers is, whether the composite services namely matrimonial services (classified by the department post 2012) which comprises of all the three ingredient services namely OIDAR, print media/match making services could be vivisected and taxed with respect to OIDAR services for the period prior to July 2012, in the abse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vision of 'site formation service' or the connected scope or activity in the above contracts. Para 3.1 of the SCN observes that the extraction of ore involves the following processes namely (i) overburden removal, (ii) raising and stacking, (iii) hiring of pay loaders, (iv) mining, (v) screening,(vi) sampling and analytical study of iron ore, etc and hence, it appeared that the appellant was engaged in providing 'site formation service', but there is no such details mentioned anywhere in the agreements. From the expenses incurred by the appellant during the relevant period, the audit appears to have culled out the figures for such site formation activity and proposed to demand service tax. 15.2 The Ld. Adjudicating Authority has considered the activity of site formation independently. From the documents available on record and the agreements between the parties which is the 'cause' for any action between the parties, it is definitely not the intention of either of the signing parties to undertake SFS and hence, at the most, it could be incidental to the mining service. This is in fact of the spirit of the TRU Letter dated 28.02.2007 wherein the Board has consider....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9;s person as the "Mines Manager" and/or "Agent for the said Mine, Thakurani Iron Ore Mines. The party of first part shall accordingly notify the Indian Bureau of Mines, the Labour Enforcement Officer, the District Magistrate, the Department of Mines Safety and such other authorities as required under the law. The contractor reserves its right to recall and/or replace all or any of its deputed/loaned personnel at any time and from time to time as it may deem fit and proper, without assigning any reason. However all payment of salaries and other expenditure of deputed personnel mentioned hereinabove shall be borne by the contractor." At this juncture, we find it most appropriate to refer to a recent decision of the Hon'ble Apex court in the case of Commissioner of Service Tax Delhi Vs. Quick Heal Technologies Limited [with Civil Appeal Nos. 5168-5169 of 2022 dated 05.08.2022] wherein, the Hon'ble court, while considering the importance of 'contract' between the parties, has ruled as under: - "Construction of agreement between the parties: - 53. ...... 54. In Delta International Ltd. v. Shyam Sundar Ganeriwalla, (1999) 4 SCC 545 : AIR 1999 SC 2607 and Ramdev Food Products....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e sale consideration once again on the ground that the updates are being provided. We are of the view that the artificial segregation of the transaction, as in the case on hand, into two parts is not tenable in law. It is, in substance, one transaction of sale of software and once it is accepted that the software put in the CD is "goods", then there cannot be any separate service element in the transaction. ....." [emphasis added by us] Now, it is equally relevant to refer to the determination of classification as prescribed under Sec. 65A of the Finance Act, 1994. The same is reproduced for convenience: "65A. Classification of taxable services - (1) For the purposes of this chapter, classification of taxable services shall be determined according to the terms of the sub-clauses (105) of section 65; (2) When for any reason, a taxable service is prima facie, classifiable under two or more sub-clauses of clause (105) of section 65, classification shall be effected as follows: - (a) the sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description: - (b) composite services consisting of a combination....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iod prior to 01.06.2007 and the issue is no more res integra. The Co-ordinate Bench at Bangalore held as follows in the case of M. Ramakrishna Reddy [2008 (10) TMI 115 CESTAT Bangalore]: - "10.1 From the above, it is very clear that the salient feature of the services rendered by the appellant is mining. In other words, the appellant is expected not only to remove the overburden but also to excavate the Barytes Ore. We cannot say that the appellant is not undertaking site formation work, but site formation work undertaken by the appellant is incidental to the mining activity. To put it in different words, the essential character of the work undertaken by the appellant is mining or winning of minerals. The mining services became taxable only with effect from 1-6-2007. The period in the present case is prior to 1-6-2007. It cannot be said that the entire service rendered by the appellant comes under the category of site formation. If that were so, one cannot say that it also falls under "Mining Services." In any case, Section 65A (2) of Chapter V of the Finance Act, 1994 reads as follows: "When for any reason, a taxable service is, prima facie, classifiable under two or more su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iew that the above issue is settled in favour of the appellant and hence, we find no reason not to follow the above ratio laid down therein and accordingly, we hold that the contract entered into in 2002 by the appellant with the mine owners for raising of ore is a composite mining contract and the alleged activity of 'site formation' is only incidental to the of mining service and hence, the scope of mining contract cannot be vivisected to demand service tax on the incidental activity of site formation. Therefore, the demand confirmed under 'site formation service' for the period from June 2005 to May 2007 is not sustainable and is ordered set aside." [Emphasis added by us] We also note that the above decision has also been affirmed by the Supreme Court, as reported in 2025 (8) TMI 1146 - SC. 4.2 It is not in dispute that the matrimonial services provided by the appellant is a composite service comprising of three services namely OIDAR, print media and match making advisory services. Applying the above ratio to the issue on hand, the legal position is that an individual component of a composite/indivisible service cannot be vivisected and taxed, which leaves th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Section 66F (Post-negative list regime) Principles of interpretation of specified descriptions of services or bundled services. 66F. (1) Unless otherwise specified, reference to a service (herein referred to as main service) shall not include reference to a service which is used for providing main service. 8 3.6 (2) Where a service is capable of differential treatment for any purpose based on its description, the most specific description shall be preferred over a more general description. (3) Subject to the provisions of sub-section (2), the taxability of a bundled service shall be determined in the following manner, namely:-- (a) if various elements of such service are naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which gives such bundle its essential character; (b) if various elements of such service are not naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which results in highest liability of service tax. Explanation - For the purposes of sub-section (3), the expression "bundled service" means a bundle of provision of various service....
X X X X Extracts X X X X
X X X X Extracts X X X X
....und that advertisement in print media was exempted from service tax prior to 01.07.2012 as such matrimonial services were not covered in any of the definitions of 'taxable service' prior to 01.07.2012. 4.9. The assessee's main contention in this regard is that these seven packages are composite packages and artificial vivisection of composite package and proposal to tax part of the consideration relatable to 'Online information and database access or retrieval service' is impermissible as per Tribunal's order in the case of Daelim Industrial Company Ltd. Vs CCE - 2006 (3) STR 124 Tri-Delhi which is also upheld by Supreme Court 2004 (170) ELT A181 (SC). I find that this case law relates to works contract service where both sale and service are involved and this is also relevant only for the period prior to 01.06.2007, i.e., prior to introduction of works contract service. Whereas, the issue involved in this case is a bouquet of services and taxability of part of it and period involved is 2009- 10. Hence, I am of the opinion that the ratio of this case law cannot be applied to the facts and circumstances of the present case." 4.5 It appears that the appel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an be specifically termed as "matrimonial services". As per Section 66F(3)(a) above, if various elements of service are naturally bundled in the ordinary course of business, it is to be treated as provision of the single service which gives such bundle its essential character. In this case, the matrimonial service is the main service and to render this service various other services are provided and hence such services are incidental or ancillary or integral part of such matrimonial service. ..." 4.7 Facts as captured in the OIΟ Νο.46/2021(C) dated 30.11.2021 are as under: - "4.0. The assessee is in the business of assisting bride/ bridegroom seekers in selection of suitable partners. The assessee renders various services, such as, providing information through online information and database access/ retrieval, publishing advertisement in its fortnightly magazine and various other matrimonial services, as mentioned supra. Through such ground events, the assessee conducts its business where registrants receive a set of matching profiles, which includes a photo, horoscope, profile and contact particulars to choose from. The assessee also provides other personal....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the main service provided by the assessee is matrimonial service and to perform the same, various other incidental or ancilliary services are provided and in terms of Section 66F(3)(a) of the Finance Act, 1994 the said taxability of naturally bundled service in the ordinary course of business is treated as provision of single service namely "Matrimonial Service" which gives such bundle its essential character. Hence, the assessee is liable to pay service tax on the gross amount charged as per Section 67 of the Finance Act, 1994 for providing the matrimonial service. 4.9 A perusal of the above sections would reveal that both under pre-negative as well as post-negative regimes, the provisions relating to the classification of composite services are akin to each other. Thus, we have no hesitation in holding, in the present set of facts, that the provision of composite services namely matrimonial services which comprises of OIDAR, print media & match making services could only be classified as 'matrimonial' services both under prenegative as well as post-negative regimes by virtue of Section 65A(2)(b) read with Section 66F of the Act respectively, for the reason that such matrimonial....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... no mis-declaration on its part. On perusal of both the ST-3 returns, I find that the assessee indicated total gross value of Rs. 6,35,98,005/- for the period from April 2010 to March 2011, whereas as per the group summary of direct income furnished by the assessee for the period 2010-11 which is one of the relied upon documents (A3), the gross income is Rs. 8,05,26,070/- thereby the assessee suppressed certain portion of gross, income. ... 4.29. Further, the assessee neither filed the ST-3 returns properly for the period from April 2010 to September 2010 and October 2010 to March 2011 nor did it file ST3 returns for the notice period, viz., April 2011 to September 2011, October 2011 to March 2012, April 2012 to September 2012 and October 2012 to March 2013, thereby violating the provisions of Rule 7 of the Service Tax Rules, 1994 read with Section 70 of the Finance Act, 1994. ..." Further, what emerges from para 4.29 of the OIO dated 06.03.2017 is that there could be no denial of the fact that the appellant had filed its ST-3 returns, the same has however been termed as 'improper'; it is not that nothing is discernible from such returns. 4.12 In respect of O-in-O No. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....b-section (6) of Section 73 is independent of each other and where the returns are filed by the assessee before the issue of show cause notice, the date of filing of return will be the relevant date and not the last date for filing such return as the said provision is applicable only in cases where return is not at all filed. In the present case, the show cause notice has been issued within five years from the date of filing ST3 returns as provided under sub- clause (a) of clause (i) of subsection(6) of Section 73 of the Finance Act 1994 and hence I hold that the demand has not been issued beyond the period of limitation of five years." We are unable to appreciate the above finding as, clearly, the law itself prescribes '5 years' from the 'relevant date' which is also defined. 4.14 Further, to our mind, however, belated filing of ST-3 return could at the most attract penalty, but the same can never be a ground for invocation of larger period and, that too, when the belated payment is compensated by appropriate interest. Hence, we find no justifiable ground being made out by the Revenue for invoking the proviso to Section 73(1) of the Act in the instant case and the consequential....
X X X X Extracts X X X X
X X X X Extracts X X X X
....est due thereon only for the period from September 2009 to September 2010 in so far as the SCN dated 17.02.2011 is concerned. We find that the case laws relied upon by the appellant are those in which the assessee has either adhered in full to the mandate of the statutory provisions governing payments made before issuance of the show cause notice or that where the returns were filed as statutorily mandated, which fact circumstances are not akin to the case of the appellant herein. These case laws are of no avail to the appellant in this matter." 4.15 Further, another ground advanced by the appellant in respect of T.V. Production services is that the O-in-O No. 46/2021 dated 30.11.2021 has proceeded to demand 6% under Rule 6 of the CENVAT Credit Rules, 2004 for the 2 overseas transactions of the Appellant. It was argued that there cannot be a levy of service tax on a transaction which is admittedly done beyond the taxable territory. In other words, they are not the exempted services but would not fall within the parameter of Finance Act, 1994, in the first place. Notwithstanding the same, even assuming that the said overseas transactions are to be treated as exempt services, the c....