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TMI Blog2023 (11) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... quality and timeliness of Date required to enable quicker decision-making and thereby improve the overall efficiency of the department. At present some of the departments owning computers are finding it difficult to obtain services of the competent computer professionals for maintenance of the systems. In view of the growing demand for computers, hereby accord sanction for constitution of an organisation under the name and style of 'Andhra Pradesh technology services Ltd' with the following objectives: - to provide consultancy to government departments and corporations in the purchase of modern office equipment including computer hardware, to provide consultancy to upgrade the computer and electronic systems of departments/corporations already possessing them, maintenance of hardware on contractual basis; development of software appropriate to the needs of user agencies and generally dealing in purchase/sale/exchange of software; provide services to operate the systems; provide consultancy to user agencies for recruitment of professionals; create computer awareness and provide detailed training to user agencies at various levels; aid development, purchase and maintenance of Telugu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 1,33,08,303 1,00,63,885 SCN No. 63/2007 Dt. 03.10.2007 (2006-07) As per SCN As per OIO Category of Service Period ST Demanded (Rs.) Category of Service Period ST confirmed (Rs.) Commercial coaching or training 2006-07 7,895 Commercial coaching or training 2006-07 7,895 Business Auxiliary Service 2006-07 44,76,167 Business Auxiliary Service 2006-07 25,68,106 (After considering the amount already paid) Manpower Supply Service 2006-07 4,39,128 Manpower Supply Service 2006-07 4,00,579 (after considering the ST already paid on Service charges) Total 49,23,190 29,76,580 SCN No. 78/2008 dated 16.10.2008 (2007-08)-ST/530/2009 As per SCN As per OIO Category of Service Period ST demanded (Rs.) Category of Service Period ST confirmed (Rs.) Commercial coaching or training 2007-08 1,711 Commercial coaching or training 2007-08 1,711 Business Auxiliary Service 2007-08 39,81,679 Business Auxiliary Service 2007-08 39,81,679 Manpower Supply Service 2007-08 10,35,764 Manpower Supply Service 2007-08 10,35,764 Total &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Securities Ltd. Vs. Commissioner of Service Tax, Mumbai-II - 2019 (20) GSTL 265 (Tri. Mumbai) * J.S.E.L. Securities Ltd. Vs. Commissioner of C. EX. & S.T., Jaipur-I - 2017 (4) GSTL 8 (Tri. Del) 6. With respect to the demand under Business Auxiliary Service ["BAS"], it is the contention of the appellant that the various Government Departments/Organisations to whom the Appellant had provided services are not engaged in any business activities, but are engaged only in various sovereign functions, the activities of the appellant cannot at all be covered under Business Auxiliary Service, in terms of the decision of the Hon'ble Tribunal in the case of UTI Technology Services Ltd. VS CCE - 2012 (26) STR 147 (Tri Mum). Further, it is their submission that It can be seen from the definitions of 'Business Auxiliary Service', that "Information technology services" is specifically excluded, during the entire period of demand in the instant case. Thus, the entire demand of Service tax confirmed under BAS is liable to be set aside. He also pointed out that the demand up to 09.07.2004 has been dropped on the ground that the Appellant is entitled to claim exemption under Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Counsel also strongly contests against the invocation of extended period. It is his submission that the Service Tax Department was aware of the activities of the appellant as early as on 25.02.2004, and subsequently some more communications (letters) were exchanged between the Department and Appellant, till February 2006. Thereafter, the show cause notice issued in March 2007 was received on 09.04.2007. Accordingly, invoking extended period of limitation alleging wilful misstatement for proposing to demand of Service tax for the period covering from 2001-02 to 2006-07, is incorrect. Further, it is clearly evident from the responses given by the Appellant to the communications received from the Department that the Appellant had entertained a bona fide belief that their activities were either exempted or not liable for Service tax. Both the SCN and impugned order failed to demonstrate that the Appellant acted either deceitfully or fraudulently to evade taxes. 10. With respect to the Department Appeal No. ST/472/2008, the Ld. Counsel submits that Appeal is filed by the Revenue against non-imposition of equal amount of penalty under Section 78 of the Act. As against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light fittings etc., and which are let out for consideration for organising any official, social or business functions. From perusal of the records, it is seen that APTS is only providing computer labs to National Institute of Information Technology and other organisations, such as APTEC, who impart training to personnel of the Government and its organisations in computer awareness, it would be highly incorrect to hold that, they are providing 'Mandap Keeper Services'. From the definition extracted above, 'Mandap' means any immovable property, including furniture and fixtures, which is let out for consideration for organising any official or social or business function. According to common parlance and dictionaries, 'a function' involves 'a ceremony' or 'a social gathering'. The activity of temporary letting out of 'computer lab' for the purposes of training programme is 'a business activity' and not a 'business function'. Hence the activity of letting out the 'computer lab' cannot be held to be a 'Mandap Keeper Services'. Therefore, the demand under mandap keeper cannot sustain. Commercial Coaching or Training: 16. 'Commercial training and coaching' is defined under 65(26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 55,745/- for the period 10.09.2004 to 31.05.2006 and Rs. 1,711/- for the period 2007-08 under 'Commercial Training or Coaching Services' is not sustainable in law. Business Auxiliary Services: 18. Definitions: From 01.07.2003 to 09.09.2004 "business auxiliary service" means any service in relation to, - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) any incidental or auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relation services, and includes services as a commission agent, but does not include any information technology service. Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this clause "information technology service" means any service in relation to designing, developing or maintaining of computer software, or computerized data processing or system networking, or any other service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any information technology service and any activity that amounts to "manufacture" within the meaning of clause (f) of section 2 of the Central Excise Act, 1944 (1 of 1944). Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this clause, - (a) "commission agent" means any person who acts on behalf of another person and causes sale or purchase of goods, or provision or receipt of services, for a consideration, and includes any person who, while acting on behalf of another person - (i) deals with goods or services or documents of title to such goods or services; or (ii) collects payment of sale price of such goods or services; or (iii) guarantees for collection or payment for such goods or serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to provide the break-up of value of taxable services under BAS for the period 10.07.2004 to 31.03.2005, which is completely illegal and cannot be sustained in law. Further, the demand for Service tax under BAS has been confirmed for the entire period of 2005-06, without accepting the claim of the Appellant that they are only liable for Service tax from 16.06.2005. Thus, the impugned order is unsustainable in law. 21. In the impugned order at para 41, the Adjudicating Authority categorises the activities carried out by the appellant on which the Service tax was demanded under BAS. As can be seen from such categorisation, all the activities are related IT Services only. It can be seen from the definition of Business Auxiliary Service, "information technology services" is specifically excluded, during the entire period of demand in the instant case. Thus, the entire demand of Service tax confirmed under BAS is liable to be dropped on this count as well. It is further seen that the activities of the Appellant appeared as 'commission agent' to classify them under 'Business Auxiliary Service'. As can be seen from para 41 of the impugned order, the Adjudicating Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de on the entire value billed/collected. 25. The issue is no longer res-integra as the Hon'ble Supreme Court have settled the issue of re-imbursement to rest. Our view is further strengthened by the decision of Malabar Management Services Pvt. Ltd. Vs. Commissioner of Service Tax, Chennai - 2008 (8) STR 483 (Tri. Chennai)which was affirmed by the Hon'ble Supreme Court as reported in 2019 (22) GSTL J56 (SC) and Vidharbha Iron & Steel Co. Ltd. Vs. Commissioner of Central Excise, Nagpur - 2016 (45) STR 464 (Tri. Mumbai) affirmed by the Hon'ble Supreme Court as reported in 2016 (45) STR J204 (SC)]. This view was also followed by the Principle Bench in the case of Rajcomp Info Service Ltd., Vs. CCE, Jaipur reported in 2022 (65) G.S.T.L. 103 (Tri.-Del). EXTENDED PERIOD: 26. It is seen from the records that the Department started this investigation vide letter from the Superintendent in C. No. IV/16/15/2004-S.T. dated 25.02.2004. Thereafter, there were many communications between the Department and the Appellant regarding the nature of their services. In between, the Managing Director of the Appellant - Shri. Randeep Sudan, IAS had also written to the Principal Secre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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