TMI Blog2010 (9) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that even if the appellant did not have profit motive and was not ‘commercial concern’, it was liable to pay Service tax - appellant raised contentions that Profit motive was essential before case of an assessee is covered by the service tax and authority could not have invoked the extended period of limitation - Held that:- As per definition of security agency under Section 65(94) service provider should be engaged in the business rendering specified service. There is no warrant for reading therein requirement of profit motive. - Decided against the assessee. Applicability of limitation law - held that:- Statutes of limitation are thus retrospective in so far as they apply to all legal proceedings brought after their operation for en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PESCO Act is a charter of functions of the appellant as held by the learned Tribunal or it confers powers upon the appellant to effectuate the object provided under Section 15(1) of the PESCO Act? D. Whether the learned Tribunal, in facts and circumstances of the case, is justified in holding that longer period of limitation of five years is available to the revenue under Section 73(1) of the Finance Act, 1994? E. Whether the learned Tribunal is justified in putting up a new case of the revenue by holding that it is Section 73 of the Finance Act, 1994, as it existed prior to 10-9-2004 will apply? F. Whether the learned Tribunal is justified in upholding the invocation of larger period of limitation of five years by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 29-11-2004, order-in-original was passed by the adjudicating authority creating demand of tax with effect from the said date which was upheld by the Commissioner (Appeals) vide order dated 25-4-2005 and by the Tribunal on 6-10-2006. The said order was reiterated vide impugned order dated 11-4-2007 after considering further contention raised on behalf of the appellant in pursuance of order of this Court dated 19-2-2007 in a writ petition filed by the appellant. The Tribunal held that the appellant was covered by the levy of service tax and the turn over received by the appellant for providing security agency service was taxable. However, levy of penalty was set aside. Relevant observations of the Tribunal are :- ...Therefore, in our vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of GDA Security Private Limited v. Union of India reported in 2002 (140) E.L.T. 332 (MAD) has held that the assessable value of the security agency services provided by a security agency is the gross amount charged including the salary of the security personnel provided. Hon ble Madras High court in the case of GDS Security Pvt. Limited (supra) in para 10 of its judgment, while upholding the constitutional validity of the inclusion of expenditure incurred while providing taxable service, in Section 67(5) of the Finance Act, 1994, observed that nature of the tax is not to be ascertained on the basis of its measure and no fault can be found with the taxing provision with reference to the measure of the tax. 3. We have heard learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned under Section 67 to be gross amount charged by the service provider as consideration. There is no requirement that the service provider should provide service for profit motive. 6. In the definition of security agency under Section 65(94), security agency is defined as a commercial concern engaged in business of rendering services relating to security of property of persons. Learned counsel submitted that the expression business implies that there must be profit motive while the appellant was a statutory corporation created for helping the ex-servicemen by employing them in security agency services. 7. Use of the word business in the definition of security agency is not enough to hold that service provider must have profit motive. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of security agency under Section 65(94) service provider should be engaged in the business rendering specified service. There is no warrant for reading therein requirement of profit motive. The word business would denote that service should not be gratis or casual but for consideration and as regular activity. 10. As regards applicability of 2004 amendment, contention raised is that since order was passed after the amendment, limitation law applicable at the time of decision of a matter will apply. No doubt, limitation law as in force at the time of decision may apply but subsisting cause of action does not get affected. In MOI Engineering Limited v. State of Punjab, (2008) 32 PHT 476 (P H) relied upon by learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
