TMI Blog2017 (4) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... - CESTAT, BANGALORE], is squarely applicable to the facts of the present case where there was no payment, by any government to the assessee, of any amount in excess of what is called "grant-in-aid". Thus any service provider-client relationship between the assessee and the governments is ruled out. The appellants are not liable to service tax in respect of these activities carried out, by using the grant-in-aid given by the various Ministries/departments of the Government. Though the appellant claimed in the appeal that the invoices indicated that the amount is inclusive of service tax, no evidence is submitted to support such contention. As such, we find that the same requires verification of the actual invoices by the jurisdictional officer. CENVAT credit - denial on the ground that the invoices were not in the appellant’s name but were not in the name of branch/head office - Held that: - denial of credit only on the ground that the address of branch office or head office was mentioned instead of appellant’s address cannot be the ground for denial of otherwise eligible cenvat credit. Appeal allowed - decided in favor of appellant. - Service Tax Appeals Nos. 342/2012 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a specific direction to examine the decision of the Tribunal in Apitco Ltd. vide Final Order No. 1113 to 1115 to 2010 dated 22.07.2010 and to decide the issue afresh. The lower authority in the impugned orders distinguished the decision of the Tribunal in Apitco Ltd. and held that the facts of the present case will not be governed by the said decision of the Tribunal. 4. Ld. Counsel submitted that the findings of the lower authority is completely erroneous and the attempt to distinguish the decision of the Tribunal in Apitco Ltd. (supra) is without merit. 5. The appellant s organizational set-up, objective and the nature of activities carried out, are identical to that of Apitco Ltd. In fact, the Articles of Association of both the organizations are identically worded and are substantially having the same objects of functioning. Similar to Apitco Ltd., the appellants also were entrusted with various project work, research work and training activities, and expenditures are paid by the concerned Ministries, by way of grants-in-aid. The appellants have to account for the said grants and any excess should be returned back to the concerned Ministries. Thus, it can be seen that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished the decision of the Tribunal in M/s. Apitco Ltd. (supra) in the following manner:- I find that the facts in the present case are dissimilar to the ones of APITCO Ltd. V.CCE, Hyderabad. The instant proceedings do not deal with the issues of relationship between the assessee and government and the scope of scientific or technical consultancy . I find that the decision in re APITCO Ltd. supra, sought to be relied upon by M/s. MPCON, is not applicable to the instant proceedings in view of difference in facts and the issue involved. In the instant proceedings, the issue involved is whether services rendered by MPCON to various individuals and concerns are chargeable to service tax when the source of money consideration is other than the service receivers. 10. We note that the above observation is devoid of merit. As noted already, the organizational structure and the memorandum of objectives are almost identical for both Apitco and the appellants. The activities carried out and the consideration received in the form of grants-in-aid are similar for both the parties.We also note that the decision of the Tribunal in Apitco Ltd. has been upheld by the Hon ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the welfare schemes. Nothing over and above these grants-in-aid was received by the assessee from any of the governments. In other words, the assessee did not receive any consideration for any service to the governments. Therefore, we hold that, in the implementation of the Governmental schemes, the assessee as implementing agency did not render any taxable service to the government. The department seems to be considering the Governments to be clients of APITCO. The question now is whether there was service provider-client relationship between the assessee and the governments. Here, again the nature of the amounts paid by the governments to the assessee is decisive. A client must not only pay the expenses of the service but also the consideration or reward for the service to the service provider. Admittedly, in the present case, there was no payment, by any government to the assessee, of any amount in excess of what is called grants-in-aid . Thus any service provider-client relationship between the assessee and the governments is ruled out. It is true that the assessee has executed the governmental schemes mainly through their engineers (technocrats) but this was not enoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ramme through Science and Technology etc. The appellants were to submit full records of the expenditure with reference to each project to the concerned Ministry. Any surplus of the amount given as grant should be returned to the Government. We find that the decision of the Tribunal in Apitco Ltd. (supra), as above, is squarely applicable to the facts of the present case and accordingly, we hold that the appellants are not liable to service tax in respect of these activities carried out, by using the grant-in-aid given by the various Ministries/departments of the Government. 13. With reference to demand of ₹ 2,34,746/- on the ground that instead of paying service tax on the gross amount, the appellant paid service tax by treating the gross amount as cum-tax-receipt inclusive of tax, the appellants submitted that the invoices raised are inclusive of taxes. In terms of Section 67(2) of Finance Act, 1994, they are entitled for calculating the tax by treating the amount as inclusive of tax. We note that the Original Authority did not give any detailed finding for demanding such short levy. He simply reproduced a case law, which states that Section 67(2) will be applicable only ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
