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2013 (9) TMI 208 - AT - Service TaxIncidence to levy Service tax on waste disposal facility - Business support service - waste management - stay - disposal of hazardous waste - use of therms "developer", "operator" and "generator" - Held that:- organizational set up of a concern does not decide taxability - Incidence of levy was decisive - Service tax was either performances based or property based - Such a basic principle had been enunciated in All India Fedn. of Tax Practitioners v. UOI [2007 (8) TMI 1 - Supreme Court] - Reading of Section 65(105)(zzzq) of the Act brings incidence of levy of Service tax in view of support to business or commerce provided by these appellants to “generators” - The word “service” was a noun of the verb “to serve”. What is service - Held that:- The word “service” is a noun of the verb “to serve”. Apex Court in Coal Mines Provident Fund Commissioner v. Ramesh Chandra Jha [1990 (1) TMI 264 - SUPREME COURT] held that it is an act of helpful activity - help, aid or to do something and while doing so, it may also involve supplying of utilities or commodities. The first part of definition in Section 65(104c) of the Act provides scope to tax the activity which renders support to business or commerce or in relation thereto while inclusive part of definition which is second limb of law declares certain category of services to be taxable. There is no iota of doubt that both the appellants carried out commercial activity for certain commercial considerations. There was no charity. Service provided by both the appellants was in relation to business to enable the business concerns (generators) to dispose their waste which was their obligation under law - Such obligation of business houses made the activity carried out by the appellants to be related to business and provision of taxable service - It was noticeable from the features of the contracts between the parties that there was regularity and continuity of commercial activity carried out by them to provide taxable service - The service provided to support business or commercial activity or in relation thereto satisfy the principle of performance based taxation. Prima facie case is against the assessee - Keeping in view the taxable service provided, interest of Revenue, scope and ambit of taxing entry, incidence thereof and principles of service tax flowing from Apex Court decision in the case of All India Federation of Tax Practitioners & Ors Versus Union of India & Ors [2007 (8) TMI 1 - Supreme Court] and HOME SOLUTIONS RETAILS (INDIA) LTD. Versus UNION OF INDIA & ORS [2011 (9) TMI 46 - DELHI HIGH COURT] - stay granted partly.
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