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2021 (9) TMI 772 - AT - Service TaxLevy of service tax - Infrastructural services under the category of Business Support Services - Transit / Guest House services provided to group companies - Manpower Supply Services - Transfer of employees group companies - Difference between ST-3 & Balance Sheet - Wrong Availment of CENVAT Credit. Levy of Service Tax - Business Support Services - transit house income - HELD THAT:- The provision of housing facility on short-term basis is specifically covered under “short-term accommodation services”, which has been subjected to service tax w.e.f. May 01, 2011 under section 65(105) (zzzzw) of the Finance Act. As this service is a new entry and has not been carved out from any other existing service, it cannot be included under any other category, including BSS, prior to May 01, 2011. This is what was held by Bombay High Court in Indian National Shipowners’ Association [2009 (3) TMI 29 - BOMBAY HIGH COURT]. The Bombay High Court observed that introduction of a new entry and inclusion of certain services in that entry would pre-suppose that there was no earlier entry covering the said services. It was also observed that creation of the new entry was not by way of amending the earlier entry and it was not carved out of any earlier entry. The infrastructural support services includes only the service specified in the Explanation, which essentially includes setting up office spaces. Thus, accommodation or guest house facility will not form part of infrastructural support services and cannot be treated as provision of BSS - the Commissioner was not justified in confirming the demand on the amount received for transit house under the category of BSS. Manpower supply services - appellant was supplying manpower to its group companies - HELD THAT:- Reliance was placed in the case of M/S MIKUNI INDIA PVT. LIMITED VERSUS COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX, CUSTOMS & CENTRAL EXCISE [2019 (8) TMI 260 - CESTAT NEW DELHI] where Division Bench in M/s India Yamaha Motor Private Limited [2019 (7) TMI 772 - CESTAT NEW DELHI] examined the issue both for the period prior to 1 July, 2012 and for the post negative list for the period subsequent to 1 July, 2012 and held that neither during the pre-negative list nor post negative list, Service Tax could not be levied on deputation of employees from a group company in Japan to the Appellant in India - thus, the appellant is not engaged in rendering supply of manpower service - demand set aside. Difference between ST-3 and balance sheet - HELD THAT:- The appellant had clearly explained the difference in the values appearing in the Service Tax Return and the Balance Sheet. The reason stated was that the appellant had reported wrong value-cum-tax basis in the Service Tax Return, whereas the appellant paid service tax on the correct value. These facts were placed before the Adjudicating Authority with supporting documents but the same have not been considered. The explanation offered by the appellant was required to be examined - for the reason that the category of taxable service under which the demand was confirmed has not been specified and for the reason that the appellant has satisfactorily explained the difference in the tax value, the demand under this head cannot be sustained. Wrong availment of credit - demand on the ground that closing balance as per Service Tax-3 returns in the months of March, 2006 and March, 2008 was NIL - period April, 2006 and April, 2008 - HELD THAT:- It is seen that the Commissioner has not examined the documents that were on record. It would, therefore, be appropriate to remand the matter to the Commissioner to examine this issue, after taking into consideration the documents, including the Chartered Accountant certificates which are at pages 1428 to 1435 and 1470 of the appeal memo. The order dated April 18, 2013 passed by the Commissioner, except to the extent it has confirmed the demand of CENVAT credit for the months of April 2006 to April 2008, cannot be sustained and is set aside. So far as the confirmation of demand of CENVAT credit for the months April 2006 to April 2008 is concerned, the Commissioner shall re-examine the matter - Appeal allowed by way of remand.
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