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TMI Blog2023 (5) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... notices dated 30.09.2010, 15.10.2012, 23.05.2014 and 17.04.2015 with interest and penalties. 2. The period involved in the show cause notice dated 30.09.2010 is from 2009-2010; the show cause notice dated 15.10.2012 is from 2011-2012; the show cause notice dated 23.04.2014 is from 2012-2013, and the show cause notice dated 17.04.2015 is from 2013-2014. The taxable category mentioned in the show cause notice for the period 01.04.2009 to 30.06.2012 is 'banking and other financial services' defined under section 65(105)(22k) of the Finance Act, 1994 [the Finance Act]. For the period commencing 01.07.2012 up to 31.03.2014 service tax has been proposed under section 65B(44) read with section 66B of the Finance Act. 3. The appellant is a statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees Pension Scheme. The Department also alleged that in lieu of providing the said services, the appellant received income under the aforesaid heads from the employers, which would be taxable under the category of 'banking and other financial services' for the period upto 30.06.2012 and leviable to service tax in terms of the provisions of section 65B(44) of the Finance Act, 1994 [the Finance Act] read with section 66B of the Finance Act for the period from 01.07.2012 to 31.03.2014. Accordingly, four show cause notices were issued to the appellant demanding service tax under section 73(1) of the Finance Act with interest and penalties. 7. The appellant filed a detailed reply to the show cause notices. The Commissioner by order dated 26.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poor, the learned authorized representative appearing for the department has, however, supported the impugned order. 12. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 13. In the case of the appellant for the period 01.04.2004 to 31.03.2009, the order dated 01.07.2010 passed by the Commissioner was assailed by the appellant before the Tribunal and the Tribunal, by order dated 13.04.2017, set aside the order passed by the Commissioner and allowed the appeal. The relevant portions of the order passed by the Tribunal are reproduced below:- "10. xxxxxxxx The Board vide Circular dated 23/08/2007 clarified that activities assigned t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant, by law. The employers do not get any benefit out of such fund management. The administrative charges and other charges paid by the employers, therefore cannot be attributed to any service received by them from the appellant. As already noted, the employers have no choice and are compulsorily mandated by law to contribute to the fund and also pay the administrative charges/inspection charges etc. in terms of the EPMF & MP Act. The employees who ultimately benefit, have not paid any consideration to the appellant. They only contributed their part of fund, through the employer, to the appellant. They contribution to the fund is not the subject matter of disputed tax liability. The other charges liked administrative charges, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant or contributor to vary such 'Fees' or 'charges. As such, we find no taxable element in such transaction. This conclusion is supported by Board's clarification dated 18/12/2006 (supra). The impugned orders are without merit and are not legally sustainable. Accordingly, we set aside the same and allow the appeals filed by the appellant." 14. In view of the aforesaid decision of the Tribunal, with which we have no reason to disagree, the demand confirmed for the period from 01.04.2009 to 30.06.2012 deserves to be set aside. 15. For the period from 01.07.2012 to 31.03.2014, the Commissioner, Siliguri by a detailed order dated 03.09.2019, in the case of the appellant for the period 01.07.2012 to 31.03.2014, discharged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al has cited the decision of the Hon'ble Supreme Court in case of Regional Provident Fund Commissioner Vs. The Hoogly Mills Company Ltd. and Ors. Reported in (2012) 2 SCC 489 for concluding that the Noticee is a statutory authority created for a specified welfare function." 16. Learned consultant appearing for the appellant has submitted that this order passed by the Commissioner, Siliguri has attained finality as no appeal has been filed by the department. 17. The Commissioner, Delhi in the order dated 02.03.2023, while adjudicating the two show cause notices issued for the period 2014-2015 and 2015-2016, has also discharged the show cause notice after relying upon the decision of the Tribunal and the Board Circular dated 23.08.2007. 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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