TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 614
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....6/2013 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....
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.... rendered by them including the tax remitted as well as the balance of Service Tax to be paid by them; owing to their financial difficulty they also undertook to make the payment along with the interest in due course. Subsequently, they also submitted 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 M....
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....tation is an extraordinary provision which would be normally exercised with utmost caution whereas in the instant case, all such legal prescriptions have been thrown to wind, by invoking such a draconian provision for a periodical notice, that too, for the 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....
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....DAR, print media and match making services and by applying the principles laid under Section 66F of the Act. To amplify, the appellants are engaged in providing a host of services, for a subscription to the prospective clients who seek match making for their respective bride/bride grooms. The appellants provide 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, wh....
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....perused the agreement dated 15.05.2002 entered for Mining in Nugaon Mines and also the agreement dated 01.09.2002 entered for mining in Thakurani Mines by the appellant and both are composite agreements for mining of iron ore and the consideration for mining is fixed at 'per metric ton' of iron ore mined. There is no separate mention about provision 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 re....
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....greed to keep the contractor's qualified mining personnel on its pay rolls on terms and conditions including emolument and other allowances as may be decided by the contractor. Such contractor's personnel shall be deemed to be the party of first party employees for all legal effects and purposes. The party of first party shall appoint one of the contractor'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 Li....
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....on the basis that it is prima facie illegal. 'You are to construe the contract, and then see whether it is legal.' " 55. The sum and substance of the ratio of the case of BSNL (supra) as discernible is that the contract cannot be vivisected or split into two. Once a lump sum has been charged for the sale of CD (as in the case on hand) and sale tax has been paid thereon, the revenue thereafter cannot levy service tax on the entire 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 serv....
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....ter alia explained the scope of Mining service which was proposed to be brought under tax net wherein, it was clearly mentioned that the services provided in relation to mining are comprehensively covered under the proposed service of mining. Further, the case law relied upon by the appellant have decided the issue in question as to whether the site formation activity undertaken incidentally by a service provider in a mining contract is leviable to tax under 'site formation service' for the period 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 mini....
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....ons of the co-ordinate benches cited supra and though the dept has preferred appeals in some cases, no stay has been granted in any of the cases. The above decision has been followed by the co-ordinate bench at Hyderabad in the case of M. Ramakrishna Reddy himself, as reported in 2018 (1) TMI 1498-Cestat Hyderabad, Department appears to have preferred an appeal against the said decision also and the same was dismissed by the Hon'ble Supreme Court along with the earlier appeal, on 27.11.2019. 15.7 Under the circumstances, we are of the view 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....
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....e most specific description shall be preferred to sub-clauses providing a more general description; (b) composite services consisting of a combination of different services which cannot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essential character, insofar as this criterion is applicable; (c) when a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under the sub-clause which occurs first among the subclauses which equally merit consideration. 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 taxabil....
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....n packages are composite in nature involving not only web based access/retrieval services but also other services, such as, advertisement in the fortnightly magazine "Kalyanamalai", supply of copies of magazines to its clients and other personalised services, viz., assistance by an executive, horoscope matching, etc. Though the packages involve various services, show cause notice was issued to demand service tax only in respect of the consideration relatable to 'Online information and database access or retrieval service' for the period prior to 01.07.2012 leaving out the consideration relatable to advertisement in magazine and other matrimonial services on the ground 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....
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....ervice tax liability worked out in the notice on the value relatable to 'Online information and database access or retrieval service' by leaving out the consideration relatable to advertisement in print media and other matrimonial services for the period prior to 01.07.2012. ...." "4.18. I now turn my attention to taxability of composite package after 01.07.2012. ... .... .... 4.21. In terms of Section 66F(2) above, where a service is capable of differential treatment for any purpose based on its description the most specific description is to be preferred over a more general description. As already held in the preceding paragraph, the set of services provided by the assessee can 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 mat....
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....the above service as a package to the customer is a bundled service, i.e. the matrimonial service provided is the main service/ essential service and publication of name in magazine and supply of magazine to the customers are part of the package, therefore, it appears that as per provisions of Section 65F (3) (a) & (b), the gross amount charged by the assessee for such services appears be liable for service tax. ... ..." Considering the earlier O-in-O at para 4.9, the Department appears to have entertained inconsistency while interpreting the composite package or bundled services. 4.8 The commissioner refers to Section 66F(2) in the context of a decision of Hon'ble Gujarat HC in the case of M/s. Torrent Power Vs. Union of India [2020 (34) GSTL 385 (Guj.)] and holds that 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 essenti....
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....ful mis-statement, fraud or collusion has been brought out in the instant case by the Revenue to justify the invocation of larger period. Even in the submission made before this bench, it was pressed that the appellants had filed their statutory returns namely ST-3 return belatedly, as a justification for invocation of larger extended period. 4.11 On the issue of extended period of limitation, the Adjudicating Authority has held as follows: - "4.28. As regards extended period of time limit invoked in the notice, the assessee contends that it has filed ST3 returns for the half-yearly period ending September 2010 and March 2011 on 23.08.2011 and indicated the value of exempted services which represents the value realised from those packages on which no service tax is paid and hence there was 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 a....
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....the demand has been raised for some years beyond the prescribed five years, the Commissioner records that: - "20.1 Another contention of the assessee is that the demand for the period upto September 2014 has been raised beyond the extended period of five years. They further stated that as per sub-clause (a) of clause (i) of sub-section (6) of Section 73, if the return as envisaged in the rules is filed, the date of filing such return shall be the "relevant date". If no such return is filed as per the rule, as per sub-clause (b) of clause (i) of sub-section (6) of Section 73, the last date for filing such return shall be the "relevant date". The above contention of the assessee is not acceptable in as much as the time limit as prescribed under Sub-clause (a) of clause(i) of subsection(6) of Section 73 and sub-clause (b) of clause (i) of sub-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 presen....
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.... of the Service Tax Rules, 1994. The appellant ought to have filed the ST-3 return for the half yearly period from September 2009 to March 2010, by the due date of 25th April 2010 as per Rule 7(2) of the Service Tax Rules ibid. As the Appellant did not do so, as per section 73(6)(i)(b) of the Finance Act, 1994, the relevant date for calculating the period of limitation, being the last date on which the return is to be filed, would therefore be 25th April 2010. Thus, in as much as the second SCN has been issued only 17.02.2011, it would bring within its ambit only the period from September 2009 to September 2010 as within the normal period, and the demand for the period October 2008 to August 2009, which was sought to be covered under the said SCN, is clearly barred by limitation. Therefore, the appellant is liable to pay the service tax along with the interest 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 ....
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....13 (29) STR 605 (Tri.-Kolkata)] and Uniworth Textiles Ltd. Vs. CCE, Nagpur [2009 (244) ELT 401 (Tri.-Del.)]. Facts in the instant case are totally distinguishable to the above cases, as, in those cases, the details were not given to the department despite attempts, whereas in the instant case, there is no such allegation. Further, as noted above the entire investigation itself is the offshoot of two letters given by the appellant itself. 5.0 The appellants have also taken a plea during the hearing that in respect of O-in-O No. 28&29/2017 dated 06.03.2017, though there would be a demand under the normal period of limitation, the same would not survive because of the fact that Section 73 (2A) of the Act was not in vogue during the disputed period namely April 2009 to March 2013 whereas, the said Section was introduced only with effect from 10.05.2013. 5.1 Though we are in agreement that Section 73(2A) of the Act cannot be applied retrospectively, in the instant case the Show Cause Notices have been given on 13-06-2014, a date subsequent to the insertion of Section 73(2A) in the Finance Act. So, therefore, on the date of issue of the Show Cause Notice, the said Section was avail....