TMI Blog2016 (5) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the appellant had rendered the services of Installation and various services in respect of Automated Teller Machines. It is found that Tribunal’s decision in the case of NCR Corporation India Pvt. Ltd. Vs. Bangalore [2008 (5) TMI 27 - CESTAT BANGALORE] was considering the self same issue and held in favour of the assessee that services rendered in respect of Automated Teller Machines are taxable from 01.05.2006. The self same issue for the very same period was before the Tribunal in the appellant’s case wherein, Revenue authorities wanted to tax these services under Erection, Commission and Installation Services or under Works Contract Services. The Tribunal held that the services rendered by the appellant in respect of Automated Tel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered under Goods Transport Agency Services. Therefore, penalties imposed are set aside. Revenue’s appeal seeking to the enhance penalty under Section 76 consequently fails. Appeal disposed of - Appeal No. ST/440 & 452/10-Mum, Application No. ST/CO/03/11 - Order No. A/86885-86887/16/STB - Dated:- 3-3-2016 - SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) AND SHRI C.J. MATHEW, MEMBER (TECHNICAL) For the Petitioner : Shri Prasad Paranjape, Advocate For the Respondent : Shri D. Nagvenkar, Addl. Commr. (A.R.) ORDER PER: M.V. RAVINDRAN: These two appeals are directed against Order-in-Original No. 14/STC/BR/10-11 dated 29.06.2010 passed by the Commissioner of Central Excise, Mumbai-I. 2. Appeal No. ST/440/10 is filed by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 76 is incorrect, while appellant in contesting the entire demand and consequent implication thereof. 4. Learned Counsel would draw our attention to Section 65(9a) (9b) of the Finance Act, 1994. He submits that the Service Tax liability in respect of ATM machines was brought into statute w.e.f. 01.05.2006 and hence no liability arises for the material period. He draws support from the decision of the Tribunal in their own case as reported at 2008 (9) STR 546 (Tri.-Chennai) and in the case of NCR Corporation India Pvt. Ltd. Vs. Bangalore - 2008 (12) STR 68 (Tri.- Bang.). As regards the demand of Service Tax liability under the Goods Transport Agency, he submit that they have already discharged the said tax liability with interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ATM to the clients during the relevant period. Service tax was also been charged on cash replenishment and customer care under the category of Business Auxiliary Services. We find that the ATM service as a separate category of service has been introduced only with effect from 1-5-2006. The definition of ATM services is as follows: Section 65(9b) , automated teller machine operations, maintenance or management service means any service provided in relation to automated teller machines and includes site selection, contract of location, acquisition, financing, installation, certification, connection, maintenance, transaction processing, cash forecasting, replenishment, reconciliation and value-added services. Section 65 (105 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning or installation of plant, machinery or equipment. This is because ATM-related services were introduced only on 1-5-2006 for the purpose of levy of service tax. Introduction of a new entry for the purpose of levy of tax presupposes that it was not covered by any of the pre-existing entries. In other words, in the ever-widening sphere of service tax, addition of an item to the list of taxable services is just an addition, and not a subtraction from a pre-existing entry. This reality was noted by this Tribunal in the case of Glaxo Smithkline Pharmaceuticals (supra). In that case, certain service rendered by the company was found to be in the category of Business Auxiliary Service as claimed by them and not Management Consultancy Service a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n merits the issue is now settled in favour of the appellant, and the impugned order holding the services rendered by the appellant in respect of Automated Teller Machines are taxable under any other category prior to 01.05.2006 is erroneous. Accordingly, that portion of the impugned order which confirms the Service Tax liability along with interest on this point is liable to be set aside and we do so. 9. As regards the Service Tax liability on the Goods Transport Agency, we perused the agreement entered by the appellant with various people. It talks about movement of Automated Teller Machines by paying sum, which would mean the appellant had rendered services to do with movement of Goods during the material period. In our view the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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