TMI Blog2023 (11) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... ining 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 - 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 - HELD THAT:- For the periodical appeals, the demand for commercial coaching was confirmed by the impugned order for the period 10.09.2004 to 31.03.2007. As can be seen from the records, the coaching services are provided by NIIT and APTEC. APTS had no role in providing the coaching services, except letting out or providing their computer lab for conducting training or coaching by other external organisations. Hence the demand 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 Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AND CENTRAL EXCISE COMMISSIONERATE (VICE-VERSA) [ 2022 (2) TMI 955 - CESTAT NEW DELHI] . Extended period of limitation - HELD THAT:- It is settled law that when all the relevant facts are in the knowledge of the department, there cannot be a case for the Department alleging wilful misstatement for invoking extended period of limitation. Further, it is clearly evident from the responses given by the Appellant to the communications received from the Department, that the Appellant have 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. The Appellant being a Government Company, cannot be alleged to have entertained any intention to evade payment of Service tax. The issues are purely of interpretation and from 2004 onwards the department is aware of the activities of the appellant - thus, on grounds of limitation also, the impugned orders need to be set aside. The impugned order set aside - appeal allowed. - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. A.K. JYOTISHI, MEMBER (TECHNICAL) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of any other technological aids to administration. Further sanction was also accorded for an expenditure of ₹ 8,000/- towards registration to be debited in the account head 296: secretarial and economic services. 3. That pursuant to enquiries about activity of Appellant, and details furnished, the Department had issued Show Cause Notice(s) after lengthy correspondence between APTS and the Department. It can be seen from the record that the MD of APTS had also written to the Government of Andhra Pradesh, seeking clarity regarding the payment of service tax. The primary contention of the Show Cause Notices are that APTS had neither taken registration nor paid services tax on amounts received for providing various taxable services such as (i) Mandap Keeper Services, (ii) Manpower supply services and (iii) Commercial Coaching and (iv) Business Auxiliary services. The Show Cause Notice also invoked the extended period in terms of proviso to Section 73 (1) of the Finance Act, as it appeared that APTS had wilfully misstated facts with an intention to evade payment of Service tax. 4. Learned Counsel submits the details of the demands for the various periods as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the user Departments, and the same cannot be considered as mandap keeper. He submits that there is no mandap keeping services provided by the appellant, and relies on the decision in India Trade Promotion Organisation Vs. Commissioner of C. Ex., Delhi-I 2004 (164) ELT 163 (Tri. Del). Further, he also points out that part of the demand post 10.09.2004, the demand was confirmed under Commercial Coaching or Training Service . He submitted that the demand under commercial coaching is also incorrect, because APTS does not provide any coaching, they only provide the computer lab and the training itself is provided by other external organizations. He also submits that there was no demand was raised under Commercial Coaching for the period 2001-02 to 2005-06, therefore, confirming under this head is beyond the scope of the Show Cause Notice. In this regard, he placed reliance on the following decisions: Swapne Nagari Holiday Resort Vs. Commissioner of C. Ex., Raigad 2019 (21) GSTL 559 (Tri. Mumbai) Reliance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to undertake various works relating the implementation of computers and claimed actual salaries of those employees plus 10% administrative cost, from the user departments. The Appellant is contesting the value of the salaries claimed (Re-imbursement) as reimbursement, as not to be included in the taxable value, and have paid Service tax on the 10% Administrative charges collected, though belatedly. However, the demand has been made on the entire value billed/collected. Learned Counsel places reliance on the decision of the Hon ble Supreme Court in UOI Vs Intercontinental Consultants and Technocrats India Pvt. Ltd. 2018 (10) GSTL 401 SC, and submits that the demand of Service tax cannot be made on the reimbursement of salary claimed by them. He further also relies on the ruling in Malabar Management Services Pvt. Ltd. Vs. Commissioner of Service Tax, Chennai 2008 (8) STR 483 (Tri. Chennai) and Vidharbha Iron Steel Co. Ltd. Vs. Commissioner of Central Excise, Nagpur 2016 (45) STR 464 (Tri. Mumbai). 9. 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 appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1882) and includes any furniture, fixtures, light fittings and floor coverings therein let out for a consideration for organising any official, social or business function. Explanation. For the purposes of this clause, social function includes marriage; mandap keeper means a person who allows temporary occupation of a mandap for a consideration for organising any official, social or business function. Explanation. For the purposes of this clause, social function includes marriage; Section 65 (105) (m) : Taxable service means any service provided or to be provided to [any person], by a mandap keeper in relation to the use of mandap in any manner including the facilities [provided or to be provided to [such person] in relation to such use and also the services, if any, provided or to be provided as a caterer. 15. At the outset, to qualify under Mandap Keeper services, there must be a service of letting out any immovable property including furniture, fixtures, 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 onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot such centre or institute is registered as a trust or a society or similar other organisation under any law for the time being in force and carrying on its activity with or without profit motive and the expression commercial training or coaching shall be construed accordingly;]* * Inserted vide Finance Act, 2010 with retrospective effect from 01.07.2003. 17. In terms of Appeal No. ST/361/2008, the demand with respect to commercial coaching cannot survive since there was no demand in the Show Cause Notice and therefore, the Order confirming the same is beyond the scope of the Show Cause Notice.For the periodical appeals, the demand for commercial coaching was confirmed by the impugned order for the period 10.09.2004 to 31.03.2007. As can be seen from the records, the coaching services are provided by NIIT and APTEC. APTS had no role in providing the coaching services, except letting out or providing their computer lab for conducting training or coaching by other external organisations. Hence the demand 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y service means any service in relation to designing, developing or maintaining of computer software, or computerised data processing or system networking, or any other service primarily in relation to operation of computer systems; From 16.06.2005 (19) 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) procurement of goods or services, which are inputs for the client; or Explanation. For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, inputs means all goods or services intended for use by the client; (v) production or processing of goods for, or on behalf of, the client; (vi) provision of service on behalf of the client; or (vii) 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king, computer rentals, arranging AMC, supervision of software development, printing through agencies, computer software, digital certificate software etc. The Show Cause Notice proposed to demand service tax from APTS under business auxiliary services . 20. On perusal of records, it is seen that the demand up to 09.07.2004 has been dropped on the ground that the Appellant is entitled to claim exemption under Notification 13/2003-ST dated 20.06.2003, while rejecting the contention of the Appellant that the demand of Service tax, if any would arise post 16.06.2005 on account of exemption under Notification No. 14/2004-ST dated 10.09.2004, which was withdrawn vide Notification No. 19/2005-ST dated 07.06.2005 [w.e.f. 16.06.2005]. While extending the benefit of exemption under Notification No. 13/2003-ST till 09.07.2004, the Adjudicating Authority proceeds to confirm the demand of Service tax even for the period prior to 09.07.2004 (from 01.04.2004), merely on the ground that the Appellant had 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner;] Explanation. For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, recruitment or supply of manpower includes services in relation to pre-recruitment screening, verification of the credentials and antecedents of the candidate and authenticity of documents submitted by the candidate. 24. In the instant case,the Appellant, wherever required, had deputed their employees to various Government Departments, to undertake various works relating the implementation of computers and claimed reimbursement of actual salaries of those employees, plus 10% administrative cost, from the user departments. The Appellant is contesting the value of the salaries claimed as reimbursement, as not to be included in the taxable value and have paid Service tax on the 10% Administrative charges collected, though belatedly. However, the demand has been made 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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