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TMI Blog2015 (12) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015). 2) The Revenue submits that the following substantial question of law would arise for determination of this Court:- "Whether on the basis of facts and circumstances of the case, the activity conducted by the Respondent is taxable under the category of 'Business Support Service' especially when the Respondent has received a sizable amount under the name and guise of "Conducting Charges" against the activities?" 3) The Revenue states that the Assessee had entered into an contract with M/s. Kolhapur Sugar Mills Ltd. (for short 'M/s. KSM') for manufacturing and sale of liquor in the name of M/s. KSM. The plant and machinery is owned by M/s. KSM, who allowed to use the entire infrastructure by the Respondent for a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act, 1994 and with imposition of penalties was also made. Annexure 'B' is copy of the show cause notice. 6) The Respondent Assessee, on receipt of this notice, filed a reply denying the allegations and urging that it cannot be held liable to pay any service tax. The adjudicating authority did not accept this explanation and passed an order-in-original dated 20th December, 2013 holding that the services provided by the Respondent merit taxability under the category referred above. It confirmed the demand along with interest and penalties were also imposed. Annexure 'D' is the copy of this order-in-original. 7) Aggrieved and dissatisfied with this order, the Assessee preferred an Appeal raising several grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Mishra would submit that the taxable service in this case is business support service. It is any service and which is provided within the meaning of the said definition which is taxable. Mr. Mishra has submitted that section 65(104c) refers to support services of business or commerce. This provision has been inserted by Finance Act, 2006 with effect from 1st May, 2006. These are services provided in relation to business or commerce and includes evaluation of prospective customers, telemarketing, processing of purchase orders and fulfillment services, information and tracking of delivery schedules. Pertinently Mr.Mishra would rely upon the words "managing distribution and logistics, operational or administrative assistance in any manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner's licences on the terms and conditions mentioned and mutually agreed between the parties. Mr. Sridharan submits that the fixed fees and charges of Rs. 30 lacs for the use of infrastructure were to be paid. The balance and over and above this sum would be the income generated from this arrangement by the conductor Assessee and that was to be retained in terms of this agreement. Such an agreement, therefore, does not give rise to any service particularly as defined in the clause. He would submit that the finding of fact is based on the materials produced. The Tribunal has concluded that there is no evidence that the Assessee received any sum from M/s. KSM. Hence, he would support the order of the Tribunal. 11) The Tribunal had bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds use of infrastructure for manufacture of liquor. As per clause 2 of the agreement, all profits and losses in respect of the manufacturing and sale of the products in the distillery division are on account of the Respondent Assessee. The Respondent Assessee had actually taken over the distillery unit of M/s. KSM. It undertook the manufacturing activity as well as sale of products. There was no evidence on record to show that the Assessee had received any amount from M/s. KSM for providing any service in relation to the business. 14) It is in that light and in facts peculiar to the case of the present Assessee that the Tribunal concluded that clause (104c) of the substantive provision, namely, section 65 will not be attracted and is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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