TMI Blog2018 (8) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... nding of the fact has not been disputed by Revenue in their grounds of appeal - It is noticed that there is no dispute as to the fact that the respondent herein has not been reimbursed of the amount deposited by the group companies - Since in the case in hand, the respondent herein had furnished declarations from the parties/group companies/sister concerns to whom allegedly the incidence of duty is passed on, refund is to be allowed - refund allowed. Refund claim - amount paid to M/s Usha Kiran Movies Limited, consequent to the adjudication that took place - unjust enrichment - Held that:- It is noticed from the records that the respondents herein had filed Chartered Accountant’s certificate dated 26.03.2009 before the lower authorities. It transpires from the records that the department had appointed Director (Cost) for looking into the claim of these respondent and the said Director (Cost) vide his report stated that the respondent herein had borne the amount charged by Usha Kiran Movies Limited - respondent herein are entitled for the refund of the amounts which have been collected from them by Usha Kiran Movies Limited as correctly held by the adjudicating authority - refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal, civil and mechanical work and charge usual charges from the sister companies located within Ramoji Film City and are also deputing the personnel to undertake the functions of various sister concerns within the Ramoji Film City. This activity, according to the authorities, would fall under the category of Maintenance Repair Services and Manpower Supply Services are liable to tax. (c) In appeal NO.ST/680/2009 as filed by Revenue, the issue is regarding refund of the amount which was deposited by the Respondent assessee in the investigations carried out in the appeal Nos. ST/557 558/2008. On receipt of an order in their favour (Appeal No. ST/557/2008) they filed refund claim before the adjudicating authority. Adjudicating authority, after following due process of law, rejected the refund claim filed by the Respondent assessee. Aggrieved by such an order, an appeal was preferred to the first appellate authority and the first appellate authority by the impugned order dated 30.04.2009 came to the conclusion that the refund claim needs to be allowed and set aside the Order-in- Original and allowed the appeal with consequential relief. (d) In appeal Nos. ST/246-256/2011, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riteria of taxable services inasmuch they are service provider to their clients and rendering of services for a consideration by a commercial concern i.e. respondent. It is her submission that the respondent in these cases was maintaining the properties in the film city like roads, buildings, common areas, electrical sub stations, water treatment plant, sewage treatment plant, hospital, bank, post office etc. and also providing security services. It is her submission that the appellant collected amount from various group companies located in the film city proportionately to the land used by them. It is also her submission that appellants were collecting service charges/supervision charges from group companies for rendering these services. 6. As against the submissions made by Ld. Commissioner, the Counsel for respondent would submit that they are not rendering any services and it is their own property which they are safeguarding by appointing security persons and also maintaining the state-of-the-art, infrastructural facilities of roads, electricity, street lights, water supply, drainage etc. compatible for carrying out commercial activities. It is his submission that the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment as an remittances made to the expenditure account is indirectly passed on to the customers. He relies upon the decision of the Tribunal in the case of Rajasthan Spinning Weaving Mills Ltd [206(194) E.L.T 254 (Tri.-Del.)] and Inn-Venue Hospitality Management Pvt. Ltd. [2008(225) E.L.T 500 (Tri.-Mumbai)]. He would submit that the first appellate authority s Order- in-Appeal No. 23/2008 (H-III)ST, dt. 30.04.2009 be set aside. 8. Ld. Counsel appearing for the respondent submits that the respondent herein had paid the amount on the directions of the Officers of DGCEI on visit. He would submit that the question of discharging service tax liability as alleged in the show cause notices would not arise as per the decision of Hon ble High Court in the case of Arvind Mills Limited (supra). It is his submission that when the tax liability does not arise, the question of any amount collected during investigation as tax is totally incorrect argument of the Revenue and the said amount needs to be considered as a deposit for hearing and disposing of the appeal on merits. 9. Ld. Counsel appearing for various appeals i.e. Appeal Nos. ST/557-558/2008, ST/680/2009 and ST/246-256/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the cost of security services, maintenance repair services and supply of manpower. 13.2) It is seen from the records that the facts are correctly put forth by both sides inasmuch Respondent Usha Kiran Movies Limited is owned by Ramoji Film City and has employed security personnel to safeguard the property and has created various infrastructure facilities like roads, supply of electricity, street lights, water supply, drainage and other facilities required for smooth functioning of any unit in the film city. Various sister concerns of the group company of Usha Kiran Movies Limited are situated inside the Ramoji Film City is also undisputed; respondent Usha Kiran Movies Limited collects proportionate amount of salary and wages paid to various security personnel and also for maintenance and repair of the infrastructure provided and an amount proportionate to the salary paid to various personnel who are looking after the sister concerns purchase, administration and Chairman s office etc. This part of collection and reimbursement of the amount proportionate to the group companies is based on space occupied in Ramoji Film City is not disputed. It is the case of the Revenue that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Supply Agency means any commercial concern engaged in providing any services directly or indirectly in any manner for recruitment or supply of manpower temporarily or otherwise to a client, in the present case, the respondent cannot be said to be a commercial concern engaged in providing such specified services to a client. It is true that the definition is wide and would include any such activity where it is carried out either directly or indirectly supplying recruitment or manpower temporarily or otherwise. However, fundamentally recruitment of the agency being a commercial concern engaged in providing any such service to client would have to be satisfied. In the present case, facts are to the contrary. 14. This ratio of Hon ble High Court of Gujarat was considered by the Tribunal in the case of Spirax Marshall Pvt. LTd. [2016(44)S.T.R 310 (Tri.-Mumbai)]. The Bench after considering the judgment of Hon ble High Court in the case of Arvind Mills Limited, following their own decision in the case of Krohne Marshall Pvt. Ltd. (Order No. A/2503/2015, dt. 22.07.2015), held that collection of salary to the employees deputed to group companies cannot be considered as manpower re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by both sides, we find that the first appellate authority has correctly recorded that the respondent herein had filed various declarations from the parties concerned that the said amount was not reimbursed by them to Usha Kiran Movies Limited. Such categorical finding of the fact has not been disputed by Revenue in their grounds of appeal. The entire grounds of appeal only submits that the respondent has not passed the hurdle of unjust enrichment as the amount deposited was mentioned in the expenditure portion and the said amount automatically is recovered indirectly from various customers. We are unable to agree with the contentions raised by Ld. DR in the grounds of appeal. It is noticed that there is no dispute as to the fact that the respondent herein has not been reimbursed of the amount deposited by the group companies. We find that the Tribual in the case of Cummins India Limited [2008(221) E.L.T 525 (Tri.-Mumbai)] has considered this argument that the amount being shown as expenditure in their Profit Loss Account does not establish recovery from customers. Since in the case in hand, the respondent herein had furnished declarations from the parties/group companies/sister c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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