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2023 (11) TMI 895 - CESTAT HYDERABADSeeking clarity regarding the payment of service tax - APTS had neither taken registration nor paid services tax on amounts received for providing various taxable services - Mandap Keeper Services - Manpower supply services - Commercial Coaching - Business Auxiliary services - suppression of facts or not - invocation of extended period of limitation. Mandap Keeper Service - HELD THAT:- At the outset, to qualify under Mandap Keeper services, there must be a service of letting out any immovable property including furniture, fixtures, light fittings etc., and which are let out for consideration for organising any official, social or business functions. From perusal of the records, it is seen that APTS is only providing computer labs to National Institute of Information Technology and other organisations, such as APTEC, who impart training to personnel of the Government and its organisations in computer awareness, it would be highly incorrect to hold that, they are providing ‘Mandap Keeper Services’ - According to common parlance and dictionaries, ‘a function’ involves ‘a ceremony’ or ‘a social gathering’. The activity of temporary letting out of ‘computer lab’ for the purposes of training programme is ‘a business activity’ and not a ‘business function’. Hence the activity of letting out the ‘computer lab’ cannot be held to be a ‘Mandap Keeper Services’. Therefore, the demand under mandap keeper cannot sustain. Commercial Coaching or Training - HELD THAT:- For the periodical appeals, the demand for commercial coaching was confirmed by the impugned order for the period 10.09.2004 to 31.03.2007. As can be seen from the records, the coaching services are provided by NIIT and APTEC. APTS had no role in providing the coaching services, except letting out or providing their ‘computer lab’ for conducting training or coaching by other external organisations. Hence the demand of Rs. 55,745/- for the period 10.09.2004 to 31.05.2006 and Rs. 1,711/- for the period 2007-08 under ‘Commercial Training or Coaching Services’ is not sustainable in law. Business Auxiliary Services - HELD THAT:- The Adjudicating Authority categorises the activities carried out by the appellant on which the Service tax was demanded under BAS. As can be seen from such categorisation, all the activities are related IT Services only. It can be seen from the definition of Business Auxiliary Service, “information technology services” is specifically excluded, during the entire period of demand in the instant case. Thus, the entire demand of Service tax confirmed under BAS is liable to be dropped on this count as well - It is further seen that the activities of the Appellant appeared as ‘commission agent’ to classify them under ‘Business Auxiliary Service’ - A perusal of the said categorisation of services would clearly reveal that, the Appellant would only assist the Government Departments/Organisation for availing/procuring various IT related hardware/services, and for such assistance, they collect certain administrative charges. Therefore, the services of the Appellant do not satisfy the definition of ‘commission agent’ so as to bring them under the category of ‘Business Auxiliary Services’. Further, with respect to exemption claim rejected on income such as, sale of tender forms, xeroxing and printing and digital software and certificates, which are not covered under business auxiliary services. This claim was not allowed on the ground that the appellant had not produced any evidence in support of the claim. However, as can be seen, they are identified clearly in the Show Cause Notice itself, therefore, the denial of exemption is incorrect. Manpower Supply Service - HELD THAT:- The issue is no longer res-integra as the Hon’ble Supreme Court have settled the issue of re-imbursement to rest - the view is further strengthened by the decision of MALABAR MANAGEMENT SERVICES PVT. LTD. VERSUS COMMR. OF ST, [2007 (10) TMI 135 - CESTAT, CHENNAI] which was affirmed by the Hon’ble Supreme Court COMMISSIONER OF SERVICE TAX, CHENNAI, TAMIL NADU VERSUS M/S MALABAR MANAGEMENT SERVICES PVT. LTD. [2019 (7) TMI 1161 - SC ORDER] and VIDARBHA IRON & STEEL CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2015 (8) TMI 593 - CESTAT MUMBAI]. This view was also followed by the Principle Bench in the case of M/S RAJCOMP INFO SERVICE LIMITED VERSUS THE COMMISSIONER, OFFICE OF THE COMMISSIONER, CGST AND CENTRAL EXCISE COMMISSIONERATE (VICE-VERSA) [2022 (2) TMI 955 - CESTAT NEW DELHI]. Extended period of limitation - HELD THAT:- It is settled law that when all the relevant facts are in the knowledge of the department, there cannot be a case for the Department alleging wilful misstatement for invoking extended period of limitation. Further, it is clearly evident from the responses given by the Appellant to the communications received from the Department, that the Appellant have entertained a bona fide belief that their activities were either exempted or not liable for Service tax. Both the SCN and impugned order failed to demonstrate that the Appellant acted either deceitfully or fraudulently to evade taxes. The Appellant being a Government Company, cannot be alleged to have entertained any intention to evade payment of Service tax. The issues are purely of interpretation and from 2004 onwards the department is aware of the activities of the appellant - thus, on grounds of limitation also, the impugned orders need to be set aside. The impugned order set aside - appeal allowed.
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