TMI Blog2022 (11) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said activity was not covered under any taxable activity for the earlier period. The identical issue has been considered by this Tribunal in case of M/S BAJAJ HINDUSTAN LIMITED VERSUS CCE, LUCKNOW [ 2018 (5) TMI 552 - CESTAT ALLAHABAD] wherein it was held that The activity of renting of land and renting of plant and machinery cannot fall under the said explanation so as to recovered by the definition of 'support services of business or commerce. The activity of the appellant i.e. of renting of immovable property and supply of tangible goods cannot be classified under infrastructural support service. Accordingly, the impugned order is not sustainable - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 379 of 2012 - Final Order No. A/11359/2022 - Dated:- 11-11-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri. Mihir Mehta Shri. Suyog Bhave, Advocates for the Appellant Shri Rajesh K Agarwal, Authorised Representative for the Respondent ORDER The brief facts of the case are that the appellant are engaged, inter alia, in the manufacture of yarn falling under Chapter heading 54 of the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that by no stretch of imagination the activity of renting land and PME to ISFPL can be covered under Business Support Service, more particularly as infrastructural support service. He submits that the appellant is not the one providing any infrastructural support to the IFSPL. He placed reliance on the following judgments:- Balaji Hindustan Limited commissioner of Central Excise, Lauknow- 2018 (12) G.S.T.L. 111 (Tri- Ahmd.) Zee Sports Ltd Vs. CCE Noida, 2018 (9) TMI 34 CESTAT Allahabad Srinivas Transports Vs CCES ST Vishakhapatnam-I, 2014 (34) STR 765 (Tri.-Bang.) Dish TV India Ltd Vs. CCE, Noida,- 2020 (41) GSTL 633 (Tri.-All) Air Liquide North India Pvt Ltd Vs. Commissioner of C. EX., Jaipur-2017 (4) G.S.T.L. 230 (Tri. Del.) Hon ble Rajasthan High Court- 2019 (27) G.S.T.L. 194 (Raj.) Anand Automotive Ltd. Commissioner of Service Tax, Delhi 2022 (59) G.S.T.L. 66 (Tri.- Del.) 2.1 Without prejudice, he further submits that it is a settled position in law that when a new category of service has been inserted for taxing an activity, the said activity cannot be said to be taxable prior to the said insertion under any other category of services. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit under Section 80 of the Act and the penalties are liable to be set aside on this ground itself. 3. Shri. Rajesh K Agarwal, Learned Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order. He submits that the appellant by providing Plant Machinery Equipment to M/S International Syntha Fabs Pvt Ltd ( ISFPL ) provided infrastructure support for the Business of ISFPL, therefore, the activity clearly falls under Business Support Service read with explanation given in the definition of Business Support Service under Section 65 (104c) read with (Section 65(105)(zzzz)) of Finance Act, 1994. 4. We have carefully considered the submission made by both the sides and perused the records. The revenue has confirmed the demand of service tax during the activity of the appellant. As per the provision of Business Support Service which includes infrastructural support, to ascertain whether the activity falls under Business Support Service, it is necessary to read the definition which is extracted below:- Support Services of Business or Commerce means services procided in relation to business or commerce and includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aharashtra State and has capacity to manufacture 6.600 M. Tons Dyed yarn Per Annum. 4.2 From the above extract of the agreement, it is clear that the appellant have not provided any regular services to the International Syntha Fabs Pvt Ltd ( ISFPL ) whereas they have given their plant and machinery equipment, on rental basis to International Syntha Fabs Pvt Ltd ( ISFPL ) for running their production activity wherein the appellant has not involved. From the said agreement, it is clear that the activity of the appellant falls under renting of immovable property in respect of land/ plant, land fixed plant. In respect of movable machinery equipment, the activity at the best can be classified as supply of tangible goods for use. It is undisputed fact that both services became taxable after the relevant period in the present case. We further observed that since the very activity of the appellant have been brought under the taxable net subsequently it makes clear that the said activity was not covered under any taxable activity for the earlier period. The identical issue has been considered by this Tribunal in case of Bajaj Hindustan Limited commissioner of Central Excise, Lauknow (S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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