TMI Blog2013 (12) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, non-payment of any of the aforesaid charges would dis-entitle to use and occupy the premises - there is no question of any outsource service. Since the licensee of the appellant did not take any assistance or aid from the appellant, the appellant is not involved in any business process or part thereof of the licensee in any way - prima facie the charges collected by the appellant from its licensee are in the nature of rent as held by the Apex Court in the case of Karnnai (1956 (11) TMI 29 - SUPREME COURT). Thus, the appellant has made out a prima facie case for waiver of pre-deposit - Stay granted. - ST/872/12 - Stay Order No. S/856/2013-WZB/C-I(CSTB), - Dated:- 12-3-2013 - P R Chandrasekharan And Anil Choudhary, JJ. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motional Marketing charges. 3.1 The assessee provides the user (licensee) with furniture, fixtures, amenities, infrastructure in the unit for which amenities fee is charged as being fixture and amenities provided in the licensed premises. These are classified under the head amenities/service charges' in the profit and loss account. Expenses per sq. ft. of licensed premises were paid by licensee as its own contribution towards cost incurred by PML towards promoting the mall. This is classified under the head Promotional and Marketing Charges'. The assessee also provided facilities for Dish Antenna and recovers the charges for the same from their clients. The assessee also recovered amount towards Business Centre charges'. 3.2 It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58,88,643/- Less : Service Tax paid suo moto on 27.07.2007 before investigation 51,03,303/- Balance Demand 7,85,340/- Thus, a demand of Rs.7,95,841/- was proposed under the heading Management, Maintenance Repair Services'. 3.4 The appellant was directed to show cause by notice dated 11.4.2011 as to why Service Tax amounting to Rs.2,03,07,932/- be not demanded and recovered for the aforementioned services under the respective service tax heads and why not penalty under Section 78 of the Finance Act, 1944 be levied. The appellant filed a reply to show cause notice and was also heard through their Authorized Representative and the show-cause notice was adjudicated confirming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also stated that entire demand is barred by limitation since the department has done investigation in 2008 where all facts and contentions were given but the show-cause notice has been issued only in April, 2011. It was also contended that the order and the show-cause notice are wholly without jurisdiction as the show cause notice was issued by Commissioner of Service Tax, Mumbai whereas the order has been passed by the Commissioner (TAR), Mumbai in pursuance of transfer order dated 8.6.2012 issued by the Chief Commissioner of Central Excise, Mumbai-I. 4.2 It was further contended that there is no question of Business Support Services being provided as defined under the Finance Act in the nature of any services like, marketing or proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to use and occupy the premises. Further, it is stated that in the case of Glaxo Smithkline Pharmaceuticals Ltd. Vs. Commissioner of Central Excise, Mumbai - 2006(3) STR 711, it has been held that once the assessee is liable under Renting of Immovable Property Services' w.e.f. 1.6.2007, it could not be liable under Business Support Services. Business Support Services are essentially outsourced service as explained by CBE C vide Circular No. 334/4/2006-TRU dated 28.2.2006. In the appellant's case, there is no question of any outsource service. Since the licensee of the appellant did not take any assistance or aid from the appellant, the appellant is not involved in any business process or part thereof of the licensee in any way. 5. Shri. R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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