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2016 (5) TMI 375 - CESTAT MUMBAI

2016 (5) TMI 375 - CESTAT MUMBAI - TMI - Liability of service tax - Maintenance & Repair Services "Business Auxiliary Services" - Whether the activity of the appellant in supplying and maintenance with repairs the ATM machine are liable to be tax - period involved is July, 2003 to 31.03.2006 - Appellant contended that 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. - Held that:- the provisions .....

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endered 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 appellantís 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 Teller Machines cannot be taxed prior to 01.05.2006. - Therefore, now the issue is settled in f .....

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which would mean the appellant had rendered services to do with movement of Goods during the material period. In our view the appellant had no case on merits, on holistic reading of clauses of agreement, leads to inevitable conclusion that the said agreement is for movement of ATMís to various locations, and appellant is paid for such movement of ATMís.Therefore, the services rendered by appellant would fall under category of Goods Transport Agency Servicesand accordingly liable to Service tax a .....

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Revenueís 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 .....

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red by the respondent in respect of the installation, operation and maintenance of Automated Teller Machines, will be covered for taxability under the category of Maintenance & Repair Services, "Business Auxiliary Services" and it was also noticed that the appellant assessee has not discharged the Service Tax liability in respect of Goods Transport Agency. A show-cause notice was issued to appellant demanding the differential Service Tax liability and interest thereof, also sought .....

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8 of the Finance Act, 1994. Revenue is seeking redressal against the Order-in-Original on the ground that penalty imposed by the adjudicating authority under 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 .....

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the movement of ATM machines. It is his submission that the said agreement talks about action that needs to be undertaken by the said contractor. On specific query from the Bench he draws our attention to the clauses in the agreement. 5. Learned Departmental Representative reiterates the findings of lower authorities. 6. On perusal of the records, we find that the issue needs to be settled in this case is whether the activity of the appellant in supplying and maintenance with repairs the ATM mac .....

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n the case of NCR Corporation India Pvt. Ltd. Vs. Bangalore (Supra) 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. We reproduce the ratio as is in para 6:- 6. On a very careful consideration of the issue, we find that the issue involved is the liability of Service tax on the supply of ATM to the clients during the relevant period. Service tax was also been charged on cash replenish .....

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tion, maintenance, transaction processing, cash forecasting, replenishment, reconciliation and value-added services. Section 65 (105)(zzzk), for the purpose of ATM [operations, maintenance or management service], taxable service means any service provided or to be provided to any person, by any other person, in relation to automated teller, machine operations, maintenance or management service, in any manner. We also find that the self same issue for the very same period was before the Tribunal .....

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of the works contracts executed by them during the period of dispute is lacking in the present case i.e. the taxable event. Indivisible works contracts like the ones executed by the assessee for the benefit of banks during the said period were not exigible to service tax during that period. Such events became taxable only w.e.f. 1-6-2007. It is no defence for the Revenue to say that ATMs are also equipments and, therefore, the works undertaken by the assessee for the benefit of banks were subje .....

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e 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 as claimed by the Revenue. Business Auxiliary Service was introduced in July 2003 when the other service was already on the statute .....

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re of certain tools and parts thereof and had received consideration therefor during 1993-99. The department sought to levy service tax on the amount received by the assessee from their technical collaborators, in the category of Consulting Engineers Service. The demand was contested by the assessee by submitting that the technology transfer fell within the ambit of Scientific and Technical Consultancy Service which was introduced on 16-7-2001 only. This contention was accepted by the Tribunal a .....

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