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2023 (6) TMI 1001 - CESTAT MUMBAILevy of Service Tax - business support service - allowing Indian Railways to use the said Railways Lines including signals and systems for transportation of Goods and passengers between Roha and Mangalore and received consideration for use of assets in terms of apportionment of revenue - HELD THAT:- From the narration, coupled with purpose of bringing the appellant into existence that was being disclosed in the Budget Speech of the Finance Minister, it can only be stated that respective states have entered into an agreement with the Railway company owned by Government of India so as to facilitate early completion of railway line with financial, infrastructural and managerial support so that project would be executed in a better ways and railway services passing through those participating states would not suffer due to administrative, finances and other constraints. Apart from this moto, creation of the Appellant company for any other purpose is not apparently visible from the work agreement or relied upon documents on which duty demand is based - there is no flow of ‘consideration’ to the appellant company and to the Indian Railway even as a separate unit so as to subject it to an independent entity under the category of service. Moreover, Indian Railways is not a separate unit that of the appellant company since it is ‘deemed owner’ and a part of it having larger share during the relevant period for which show cause notice was issued. Therefore, the demand of service tax on this score on the appellant company is also not sustainable. Section 65(105)(zzzq) of Finance Act defined taxable service to mean any service provided or to be provided to any person, by any other person, in relation to support services of Business or Commerce and our finding as referred above would go to say that both the appellant and Indian Railways are not separate entities, it is thus held that the Appellant’s case is also covered by Board’s Circular No.109/3/2009-S.T., dated 23.2.2009. The confirmation of demand by the Commissioner is unsustainable, for which the order passed by the Commissioner is required to be set aside - appeal allowed.
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