TaxTMI 
TaxTMI 
TaxTMI 
2024 (5) TMI 1639
X X X X Extracts X X X X
X X X X Extracts X X X X
....s for manufacturing axles, gear boxes and excavator machines which were used for manufacture of final products. The Appellant had made a township in the area thereby providing house, roads, electric, water, medical facilities, etc. (herein-after referred to as 'common costs') to its employees which were also enjoyed by all the divisions operating under the Appellant. 2.1. Due to strategic reasons, the Appellant hived off the said divisions thereby creating three separate companies namely, HV Axles Limited ('HVAL'), HV Transmissions Limited ('HVTL') and Telco Construction Equipment Company Limited ('Telcon'). Even after hiving off, the said common costs were incurred by the Appellant and benefits arising out of the said common costs were continued to be enjoyed by HVAL, HVTL and Telcon, pursuant to separate agreements entered with each of the Company. 2.2. In terms of the agreements so entered, the actual costs w.r.t. creche, education, sports, medical and health, legal services, housekeeping, water supply, compressor house, common stationery items, factory maintenance, etc. were agreed to be apportioned with HVAL, HVTL and Telcon on the basis of number of employees, turnover, com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efore 01.05.2011, the words "operational assistance for marketing" were there, which was replaced as "operational or administrative assistance in any manner"; that as the words 'in any manner' are absent, therefore, for the period prior to 01.05.2011, the appellant is not liable to pay service tax. 5.1. It is his submission that it is a case of revenue neutrality as if the appellant pays service tax, the appellant's own unit would be entitled to take CENVAT Credit of the same. 5.2. Further, it is submitted by the Ld. Counsel for the appellant that extended period of limitation is not invokable in the facts and circumstances of this case. 7. On the other hand, Learned Authorized Representative for the Revenue supported the impugned order. 8. Heard the parties. 9. We find that during the impugned period, the definition of 'business support service' was as under:- "(104c) "support services of business or commerce" means services provided in relation to business or commerce and includes evaluation of prospective customers, telemarketing, processing of purchase orders and fulfilment services, information and tracking of delivery schedules, managing distribution and logistics,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es, etc., and also considering the appellant as a Service Provider, appears to be for anyhow bringing the same in the definition of 'taxable serves', which exercise is only on assumptions, without any documentary evidence, and contrary to the findings recorded in earlier part of the same impugned Order (in Para 4.3 thereof). 5.13 There is no dispute on the fact that w.e.f. 1- 5-2011, the words 'operational assistance for marketing" earlier appearing in Clause (104c) of Section 65 were substituted with "operational or administrative assistance in any manner', to enhance the scope of the definition of "support services of business or commerce". This amendment is only prospective in operation. Therefore, in any event, prior to 1-5-2011 any such assistance by the appellant cannot be within the scope of the definition of "support services of business or commerce", and consequently, neither any such assistance was a "taxable service" within the scope of Section 65(105) under sub-clause (zzzq), nor was any person providing such assistance was falling within the term "service provider" under Section 65(105). 5.17 As has been discussed above, the Appellant has procured various service....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut in Rule 5(2) of the Valuation Rules. 5.18 In Pharmalinks Agency (I) Pvt. Ltd. v. CCE, 2015 (37) S.T.R. 305, the Tribunal in the matter of a clearing and forwarding agent, who was receiving reimbursement towards freight charges under a separate agreement from the service recipient, held that the assessee is acting as a Pure Agent by making the payment of expenses subsequently taking the reimbursement of the same from the service recipient. Therefore, in the instant case the amount so recovered by the Appellant is in the capacity of a Pure Agent and thus the same cannot be subjected to the Service tax. 5.19 In Para 4.23, the adjudicating authority erroneously holds that despite repeatedly being asked for the production of the invoices for the support of the claim of Cenvat credit, the Appellant failed to submit any invoice. A letter dated 20-3- 2015, a certificate of Chartered Accountant was submitted providing the details of the Cenvat credit available during the periods from 2006-07 and 2007- 08 amounting to Rs. 20,97,962/- and Rs. 3,58,24,163/- respectively. In the certificate, the Chartered Accountant had clearly mentioned the details of suppliers and particula....