TMI Blog2015 (8) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice in order to fasten liability of Service Tax. - appellant is not liable to Service Tax in respect of the non-taxable services, the gross value of which totals ₹ 40,00,09,350/- and accordingly, the demand of ₹ 4,12,00,963/- is set aside. In respect of 'cleaning services', the same have been provided by the appellant to various organizations including Govt. Hospitals, Govt. Educational Institutions, Horticulture, Agriculture, Housing Societies etc. - appellant have paid Service Tax suo motu even before the issue of show-cause notice on the value of cleaning services provided to 'Private Hospitals, Private Educational Institutions, Charitable Hospital and Institutions considering the value of the same as inclusive of Service Tax amounting to ₹ 19,20,285/-. - demand of ₹ 2,94,55,469/- towards cleaning services is erroneous and is accordingly set aside. Even in the earlier period out of 7 SEZ units (under dispute) except Punj Lloyd and Glenmark Pharma, services have been provided to these SEZ units and based on the certificate from the Chartered accountant, exemption was allowed to the appellant. In the present case also, the certificate of ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices to SEZ units and some non-taxable services. An audit was conducted wherein it was observed that the appellant was providing security agency services for which the appellant is registered, and they are also providing other services like lift operation services, labour supply services, cleaning services, driver services, telephone operator services and certain other house-keeping services. The Revenue observed difference in gross value of taxable service as shown in ST-3 returns, as compared to turnover as per Books of Account. 3. A show-cause notice dated 21.12.2012 was issued for the period 2011-12 and pursuant to adjudication, being the present impugned order, the following issues are involved as shown in the table below:- Sr. No Issue Value of Service (Rs.) Service Tax Demand (Rs.) in dispute 1 Claimed as Non Taxable Services 40,00,09,350 4,12,00,963 2 Cleaning Services 28,59,75,429 2,94,55,469 3 Services provided to SEZ units ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Reimbursement of Expenses 3,04,58,321 31,37,207 Total 5,00,63,024 51,56,492 5. The learned Counsel for the appellant urged that it is evident from the impugned order that the adjudicating authority have not disputed the nature of services being rendered by the appellant whether being non-taxable services in the form of cleaning services to non-commercial organizations or the services provided to SEZ units. The only objection of the learned Commissioner is that the appellant has failed to produce supporting documents in support of their claim. Right from the beginning, the appellant had claimed that the issue in the present period are identical to the issue raised in the earlier show-cause notice (prior period) which formed part of the Order-in-Original dated 12.11.2012. In such circumstances, the appellant had requested the authority to await the decision of the Tribunal in the earlier cross appeals preferred by the Revenue and assessee against the said Order-in-Original dated 12.11.2012. Further, the replies furnished by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption where there are no certificates. They have provided the certificates along with quantum of services provided duly certified by the Chartered Accountant. Annexure-II of reply dated 20.10.2012 containing the details of Security Agency Services provided to SEZ Developers Units during the period 01.10.2008 to 31.03.2009 and 2009-10 to 2010-11. The show-cause notice proposed to deny the exemption under Notification No. 4/2004-ST and Notification No. 9/2009-ST in respect of the services provided by the noticee reportedly in SEZ Developers/Units primarily on the ground that the assessee did not produce the necessary certificates evidencing that exemption have been claimed for services provided to SEZ Developer or Units. The show-cause notice did not give any break-up of the amount of Service Tax demand in respect of services reportedly claimed by the notice as services provided to SE Developer or SEZ units. The noticee has produced copies of approval certificates as SEZ Deeloper/SEZ units and the value of the services provided to SEZ units or SEZ developer as certified by the Chartered Accountant. The notice declared the claim of exemption in the ST-3 returns filed for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression of facts with intention to evade tax. In the present case the facts and circumstances being identical, there is no justification for imposition of penalty on the appellant. 5.4 It is further urged that the findings of the learned Commissioner as regards the services rendered to SEZ units reveals total non-application of mind. In para 20 of the impugned order which refers to 7 SEZ units and the nature of documents produced by the appellant, it is interesting to note that the learned Commissioner has rejected the claim with the observation that A2 certificate have only been produced in the case where the appellant had not submitted A1 certificate and where the appellant has submitted A1 certificate, it has been observed that only declaration in A1 has been given. These certificates are undoubtedly for the purpose of availing the exemption by the SEZ units and accordingly there can be no dispute as to the fact of existence of the SEZ unit in question. Further, the question of submitting A2 certificate for the period prior to 1.7.2013 is not possible as the provision for submitting certificate in A2 was brought in statute w.e.f. 1.7.2013 and disputed period is 2011-12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , I do not impose any penalty on M/s Bombay Intelligence Security (India) Ltd, Mumbai - 86 under Section 76 and Section 77 as M/s Bombay Intelligence Security (India) Ltd., Mumbai - 86, have proved that there was reasonable cause for the said failure. It is vehemently further urged that no ground for imposition of penalty is made out and the penalty imposed is fit to be set aside. 6. The learned AR submits that out of the 5 issues arising in this appeal, 4 issues, except point of taxation matter, stand concluded by the earlier order of this Tribunal in the appellant's own case. The issues accepted by the appellant are in respect of - (a) cleaning services (to some clients), (b) reimbursement / compensation of expenses - only dispute in the case of reimbursement of expenses is 'cum-tax levy', (c) SEZ issue - the documents produced for Punj Lloyd is not authorized and in the case of Glenmark Pharma. Hence, the benefit is not allowable. Further, the point of taxation issue is new one as per the change in the provisions of law, tax is payable for the current period on accrual basis. However, the appellant have paid the tax on receipt basis. Thus, the appellant is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. organizations. As per the definition of cleaning activity given under Section 65(24g) of the Act, cleaning service provided only to commercial or industrial establishment is covered. Further, service of cleaning provided to non-commercial organization like Agriculture, Horticulture and Housing Societies are specifically excluded. We also take notice of the fact that in the earlier Order-in-Original dated 12.11.2012 for the prior period, the adjudicating authority has confirmed demand only in respect of cleaning services provided to Private Educational Institution and Private Hospital. Further, the demand with respect to cleaning services provided to Govt. organizations, Agriculture, Horticulture was dropped, being not taxable. It is further noticed that the appellant have paid Service Tax suo motu even before the issue of show-cause notice on the value of cleaning services provided to 'Private Hospitals, Private Educational Institutions, Charitable Hospital and Institutions considering the value of the same as inclusive of Service Tax amounting to ₹ 19,20,285/-. Break up of these cleaning services provided to different entities have been certified by the Chartered Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the receipt basis to accrual basis. It is evident that the liability on accrual basis has been discharged, on the difference in the value of the services for the prior period also and therefore, the same were not included in the gross value, determined for ST-3 returns for 2011-12. Further, in view of the fact that no specific category or classification is mentioned either in the show-cause notice or in the impugned Order-in-Original, we deem it just and proper and accordingly, set aside the demand of ₹ 58,09,961/-. 7.5 So far the issue of 'reimbursement of expenses' which have been taxed, it is seen that the appellant have voluntarily deposited ₹ 31,37,207/- out of the total demand on this count as ₹ 34,64,339/- prior to issue of show-cause notice. This small difference of about 10% being ₹ 3,23,132/- remains, which is attributable to erroneous computation by Revenue by considering the gross value of service as exclusive of Service Tax instead of considering the same as inclusive of Service Tax. It is also taken notice that for earlier period, order dated 12.11.2012 in the appellant's own case, the adjudicating authority has accepted and co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
