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TMI Blog2013 (3) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... the case are that the appellant are engaged in providing the following services: Maintenance or Repair Services, Business Auxiliary Services, Outdoor catering services, Cargo handling services, Security agency's services, Courier services, Construction of complex services, Interior Decorator services, Manpower Recruitment & Supply Agency Services & Cleaning services. During the course of the audit conducted by the Officers of the Service Tax Commissionerate, Chennai, it was revealed that the appellant had realized an amount of Rs. 63,90,740/- for the cleaning service rendered to the Child Trust Hospital but had failed to discharge the Service Tax of Rs. 7,64,467/- on such amount realized by them. 2.1 Further, the appellant had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o stretch of imagination could be construed as amounting to a commercial establishment within the meaning of the Finance Act, 1994, and as such the tax demand confirmed by him on the above account is wholly unjustified and untenable; (ii) that the learned lower adjudicating authority should have duly considered the aspect of non-availment of input credit on such of those input services exclusively put into use by the appellant while rendering the output service of "Outdoor Catering Service" by virtue of which he ought to have seen reason to uphold the appellant's entitlement to abatement; (iii) that they had availed Cenvat credit of certain common input services utilized the same for their tax payment purpose had consciously agreed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent had been filing returns periodically and also their client's unit was audited periodically. (d) As regard to demanding duty on cleaning service, the issue was within the knowledge of the Department and hence demand is also time-barred. 4.1 Further, they have submitted that the issue involved is interpretation of provisions and therefore the question of imposition of penalty does not arise on the basis of various decisions of the higher judicial forums. 5. I have carefully gone through the records of the case and submissions made by the appellant. The issues to be decided are whether - (i) the demand is hit by limitation of time as claimed by the appellant. (ii) the appellant is liable to pay Service tax on the cleaning services ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 80G of the Income-tax for, Deduction in respect of donations made to Child Trust Hospital. They relied on Circular No. 80/10/2004, dated 17-9-2004. They had been paying service tax on the same services. They stopped paying service tax w.e.f. 1-8-2005 consequent to the Circular F. No. 81/6/2005/TRU, dated 27-7-2005 wherein it has been clarified that cleaning services in respect of non-commercial building and premises thereof would not be covered within the purview of service tax. As per Section 65(24b) of the Finance Act, 1994 "cleaning activity" means :- (24b) "cleaning activity" means cleaning, including specialised cleaning services such as disinfecting, exterminating or sterilising of objects or premises, of - (i) commercial or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot pay any Service tax on the cleaning activity undertaken at Childcare Hospital premises. 6.2 Short payment of Service tax on Outdoor Catering Services : I find from the records that the appellant was issued with show cause notice for short payment of service tax towards outdoor catering services provided by them. The appellant had submitted that they had availed the benefit of abatement under Notification No. 1/2006-S.T., dated 1-3-2006 which resulted in short payment of service tax. The Department had alleged that the appellant is not eligible for benefit of abatement under the said notification as the appellant had availed Cenvat credit on common input services thereby not fulfilling the conditions stipulated under the said notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the penalty imposed under Section 78 of the Finance Act, 1994. As already concluded, there is no suppression of facts in the instant case with an intention to evade payment of Service tax. As the non-payment of Service tax is only due to interpretation of statute, I am of the view that this is a fit case to be given relief under Section 80 of the Finance Act, 1994. Hence, I set aside the penalty imposed by the Lower Adjudicating Authority under Section 78 of the Finance Act, 1994. 7. In view of the above discussion and conclusions arrived at, I pass the following order : (i) The demand for the period w.e.f 1-10-2007 alone will survive in the instant case as there is no suppression of facts with an intention to evade payment of Service t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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