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2017 (6) TMI 511 - AT - Service TaxBusiness Auxiliary Services - liability of tax - case of appellant is that they have shared some expenditure for common facilities like electricity, canteen, transport of employees etc., with the sister concern. Some portion of the expenditure attributable to the other company was collected and shown in their income. In an arrangement of sharing of facilities, there can be no element of promotion of business - Held that: - It is not clear as to what type of service is being provided by the appellant and on whose behalf. There is no third party involved at all, in the whole transaction. Certain common expenditure towards various facilities like canteen, transportation, etc. were shared among group companies. Such arrangement cannot be considered as activities taxable under “Business Auxiliary Services” - The impugned order did not discuss the legal scope of tax entry applicable to the case in hand and the same is not sustainable. Cargo Handling Service - appellant claims that they are not a Cargo Handling Agency - Held that: - it is seen that nowhere in the proceedings before the lower authorities, the exact nature of work carried out by the appellant has been elaborated and applied to the statutory definition - there are two conditions to be satisfied. There must be a cargo accepted by the transporter for carrying the goods from one place to another. A commodity becomes a cargo and thereafter only, loading and unloading in a freight terminal becomes a cargo handling service. Further, the service provider must incidentally be involved in loading or unloading or packing, unpacking of the cargo. These conditions are not met in the present case. As such, the impugned order confirming the service tax liability is without merit. Manpower Recruitment and Supply Agency - case of appellant is that they are not acting as “Manpower Supply Agency” - Held that: - the appellant have deputed some staff to their group companies for certain specific work for the limited period. The appellants are not engaged in the business of “Manpower Recruitment or Supply Agency Services”. The provisions of Section 65(105)(K) is not applicable to the present situation - the impugned order had confirmed the service tax liability only on the ground that certain considerations have been received with reference to deputation of staff and hence, service tax liability. In view of the factual and legal position recorded above, the summary finding of the impugned order is not sustainable. Demand not sustainable - appeal allowed - decided in favor of appellant.
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