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2014 (10) TMI 883 - Commission - Service TaxLeviability of Service tax - Rendering Club’s or Association’s Membership Service during the period 2007-08 to 2011-12 - Revenue considered ‘donations’, ‘subscriptions’, ‘entrance fee’ and ‘election deposit forfeited’ as the total taxable income for all the five years and demanded Service Tax on this income - Held that:- ‘subscription’, ‘entrance fee’ and lorry stand collection totalling to ₹ 2,99,085/- for the year 2010-11 and ₹ 3,31,750/- for the year 2011-12 is liable for Service Tax after allowing the threshold exemption value for the year 2010-11 determined along with value of taxable service for other services held taxable elsewhere in this order. Leviability of Service tax - Rendering Supply of Tangible Goods Service during the period 2007-08 to 2011-12 - Revenue demanded Service Tax on the basis of the description ‘Hire charges’ reflected in the financial statements of the Sangam and construed the activity of transporting petroleum products from oil companies namely HPCL as Supply of Tangible Goods Service - Held that:- the applicants rebuttal of the Revenue’s claim, substantiated with brimming facts and reasoning, is acceptable and that the nature of activity involved in transportation of petroleum products from the oil companies to the respective destinations by the applicant in their tanker trucks gets covered within the scope of GTA service also gets support from the fact that the same has been accepted by the respective jurisdictional authority and assessed to Service Tax on HPCL and they complied with payment of the Service Tax under Reverse Charge Mechanism and filed periodic ST-3 returns. Moreover, if the Service Tax on the Supply of Tangible Goods Service is paid the same would be available as CENVAT credit for payment of Service Tax on GTA service, thereby making the exercise revenue neutral. Therefore, the entire Service Tax of ₹ 3,50,451/- demanded on this activity in the impugned show cause notice is infructuous and not sustainable in law. Leviability of Service tax - Rendering Business Auxiliary Service during the period 2007-08 to 2011-12 - Applicant repudiated the demand in respect of turnover discount rebate and incentives received from the principals and spare parts suppliers, performance bonus/and reimbursement of expenses received towards maintenance of petrol bunk and uniforms of the employees etc., mentioning that the same are related to trading activity carried on by the applicant and did not come under the scope of service - Held that:- the Service tax demanded in respect of the activities namely performance bonus, uniform subsidy are not liable for Service Tax as the same is accrued to the applicant on their trading activities. These activities and receipts of income are relatable to the trading activities. Therefore the entire demand of ₹ 1,18,688/- made under the heading Business Auxiliary Service is not sustainable in law. Leviability of Service tax - Rendering Renting of Immovable Property Service during the period 2007-08 to 2011-12 - Applicant submitted that they rented out vacant land to M/s. HPCL and Service Tax is not required to be paid, on the rental of vacant land in terms of Ministry’s Circular No. DOF/334/1/2007-TRU, dated 28-2-2007 and reckoned the Service Tax liability on the renting of vacant land only from 1-7-2010 to 31-3-2012 - Held that:- the total value of service on account of rental of immovable property works out to ₹ 14,25,776/- for the year 2010-11 and ₹ 20,07,593/- for the year 2011-12 is liable for Service Tax after allowing the threshold exemption value for the year 2010-11 determined along with value of taxable service for other services held taxable elsewhere in this order. Threshold exemption and Service tax liability and interest - Appellant contended that they were liable for Service Tax only from the year 2009-10, that too after availing the threshold exemption limit of ₹ 8/10 lakhs for the respective financial year but revenue contended that the applicant has exceeded the threshold limit during the preceding financial year itself by clubbing the Service tax liability arrived at, on the various services provided by the applicant - Held that:- the applicant is eligible for total exemption for Service Tax for the years 2007-08 to 2009-10 and are liable to pay Service Tax on the service value of ₹ 7,24,861/- in excess of the threshold exemption limit of ₹ 10 lakhs for the year 2010-11 and no exemption for the year 2011-12, in terms of Notification No. 06/2/2005-S.T., dated 1-3-2005 and Notification No. 33/2012-S.T., dated 20-6-2012. Also the cum-tax benefit sought for by the applicant in terms of Section 67(2) is not admissible. Accordingly, the claim of the applicant for cum-tax benefit is disallowed and is arrived at the Service Tax liability at ₹ 3,15,613/- and applicable interest thereon. Also the applicant had admitted a total liability of ₹ 3,80,796/-and interest of ₹ 40,675/- payable thereon in their application filed in terms of Section 32E of the Act, ibid and during the hearings. Imposition of penalty - Non-payment of Service tax - Held that:- in view of the true and full disclosure of tax liability and co-operation extended by the applicant the Bench takes a lenient view and extend partial immunity from penalty to the applicant. Prosecution - Section 32K of Central Excise Act, 1944 - the applicant is granted immunity from prosecution under Section 32K of Central Excise Act, 1944, as made applicable to Service Tax vide Section 83 of the Finance Act, 1994. - Matter disposed of
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