TMI Blog2023 (5) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... r any of such categories/ lists, as there is no denial to the fact that appellant is not in business of financing, it is neither a banking nor a non-banking financial institute. Nor it is any other body corporate or commercial concern which is into the business of extending financial supports. This fact is sufficient for us to hold that appellant cannot be covered under the category of such persons who would be excisable to tax under the category of BOFS). The Show Cause Notice itself recites that the appellant has given the corporate guarantee on behalf of their group companies but has not charged any commission or interest or fees for providing the said corporate guarantee. Same is also apparent from the letter given by the Syndicate Bank from where was issued the impugned corporate guarantee that the loanee company has undertaken that no commission is paid by them to their corporate guarantor. Thus, it becomes clear that there is no element of consideration involved in the present case applying the definition of service - the question of the activity of extending corporate guarantee by the appellant to its associate companies cannot be called as service in terms of above prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al loans to both of its companies. However, admittedly no consideration was received by the appellant either from the Bank /Financial Institution or from their associate enterprises for providing the said corporate guarantee. It is submitted that the decision of the authorities below is based on assumptions. The finding that the corporate guarantee given by the appellant has benefited the associate enterprises in two ways, firstly in the form of lower rate of interest for their borrowing cost and secondly in the form of zero cost for the Corporate Guarantee to be provided to the lender and the lender also has benefitted as they have got business from the associate enterprises of the appellant, is nothing but merely assumptions. Ld. Counsel has also mentioned that the issue involved herein is no more res-inegra. Following decisions have been relied upon:- 1. DLF Projects Ltd. vs. CCE ST, Gurgaon [2020 (38) G.S.T.L. 56 (Tri-Chan)] 2. DLF Cyber City Developers Ltd. vs. Commissioner of S.T., Delhi IV [2019 (28) G.S.T.L. 478 (Tri.-Chan)] 3. Sterlite Industries India Ltd. vs. Commissioner of GST C.Ex., Tirunelveli [2019 925) G.S.T.L. 277 (Tri-Chennai)] 4. As far as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions and advice on corporate restructuring and strategy; (vii) provision and transfer of information and data processing; and (viii) banker to an issue services; and (ix) other financial services, namely, lending, issue of pay order, demand draft, cheque, letter of credit and bill of exchange, transfer of money including telegraphic transfer, mail transfer and electronic transfer, providing bank guarantee, overdraft facility, bill discounting facility, safe deposit locker, safe vaults, operation of bank accounts; (b) foreign exchange broking and purchase or sale of foreign currency including money changing provided by a foreign exchange broker or an authorised dealer in foreign exchange or an authorised money changer, other than those covered under sub-clause (a); Explanation. - For the purposes of this clause, it is hereby declared that purchase or sale of foreign currency, including money changing includes purchase or sale of foreign currency, whether or not the consideration for such purchase or sale, as the case may be, is specified separately; The taxable service is defined under Section 65(105)(zm) also needs to be considered which reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not fall under any of such categories/ lists, as there is no denial to the fact that appellant is not in business of financing, it is neither a banking nor a non-banking financial institute. Nor it is any other body corporate or commercial concern which is into the business of extending financial supports. This fact is sufficient for us to hold that appellant cannot be covered under the category of such persons who would be excisable to tax under the category of BOFS) 8. We further observe that any activity cannot be called as service unless and until there is an element of consideration Now the definition of service in Section 65 B (44) of Finance Act, 1944 becomes relevant. It reads as follows:- Service means any activity carried out by a person for another for consideration and includes declared service but not includes the services listed in the negative list under section 66B of the Act . 9. Reverting to the facts of the present case, we observe that the Show Cause Notice itself recites that the appellant has given the corporate guarantee on behalf of their group companies but has not charged any commission or interest or fees for providing the said corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service provider. Wherever a monetary consideration is charged for providing the taxable service and no non-monetary consideration forms part of the agreement between the parties, it is clause (i) that applies and the value of the taxable service would in such case be the gross amount charged by the service provider and paid by the service recipient. 11. We also observe that there is no evidence on record with respect to the observations of ld. Commissioner (Appeals) that the corporate guarantee given by the appellant has benefited the associate enterprises in two ways as quoted above. We further observe that issue is no more res-integra as has also been conceded on behalf of the department. The decisions relied upon by the appellant DLF Projects Ltd. (supra) and DLF Cyber City Developers (supra) have already held as follows:- 4 . It is an admitted fact that the appellant has not received any consideration either from the financial institutions or from their associates for providing corporate guarantee, in that circumstances, no service tax is payable by the appellant. Moreover, the demand raised in the show cause notices are on the basis of assumption and presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X
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