TMI Blog2024 (1) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... Court interpreted the Section 9 (2) (xvii) that as per the said section word may was used which indicates that it is not a mandatory levy hence the exemption provided as per the board circular dated 18.12.2006 shall not apply. In the present case the demand was raised on the service of management, maintenance and repair service for which the charges are prescribed. In the Rule 13 wherein the words used are Service charged determined from time to time shall have to be paid by the hirer to the corporation . This clearly indicated that the charges for maintenance is mandatory hence it is clearly a statutory levy on which no service tax is chargeable as clarified in the board circular No. 89/7/06 dated 18.12.2006 read with observation of the Hon ble Supreme Court in the case of Krishi Upaj Mandi Samiti and therefore, in the present case the charges being statutory levy, the same is not liable to Service Tax. The impugned order is set aside - Appeal is allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri S J Vyas , Advocate for the Appellant Shri R K Agarwal Superintendent ( AR ) for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the Government Treasury. A doubt has arisen whether such activities provided by a sovereign/public authority required to be provided under a statute can be considered as 'provision of service' for the purpose of levy of service tax. 2. The issue has been examined. The Board is of the view that the activities performed by the sovereign/public authorities under the provision of law are in the nature of statutory obligations which are to be fulfilled in accordance with law. The fee collected by them for performing such activities is in the nature of compulsory levy as per the provision of the relevant statute, and it is deposited into the Government treasury. Such activity is purely in public interest and it is undertaken as mandatory and statutory function. These are not in the nature of service to any particular individual for any consideration. Therefore, such an activity performed by a sovereign/ public authority under the provisions of law does not constitute provision of taxable service to a person and, therefore, no service. tax is leviable on such activities 3. However, if such authority performs a service, which is not in the nature of statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accorded to each case on hand. Purposive interpretation can be given only when there is an ambiguity in the statutory provision or it results in absurdity, which is so not found in the present case. 8.4 Now, so far as the submission on behalf of the respondent that in the event of ambiguity in a provision in a fiscal statute, a construction favourable to the assessee should be adopted is concerned, the said principle shall not be applicable to construction of an exemption notification, when it is clear and not ambiguous. Thus, it will be for the assessee to show that he comes within the purview of the notification. Eligibility clause, it is well settled, in relation to exemption notification must be given effect to as per the language and not to expand its scope deviating from its language. Thus, there is a vast difference and distinction between a charging provision in a fiscal statute and an exemption notification. 9. In the present case, it is the case on behalf of the appellants that the activity of rent/lease/allotment of shop/land/platform/space is a statutory activity and the Market Committees are performing their statutory duties cast upon them under Section 9 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry or sub-treasury, or a bank duly approved for this purpose by the Director. All balance from the fund shall be kept in such treasury or subtreasury or bank and it shall not be withdrawn upon except in accordance with these rules. 10.1 Now, so far as the submission on behalf of the appellants relying upon Rule 45 of the Rules, 1963 that the fees, which is collected shall be deposited with the Government Treasury and therefore also the Market Committees are exempted from payment of service tax is concerned, it is to be noted that on fair reading of Rule 45, the amount of fee so collected on such activities rent/lease shall not go to the Government. Rule 45 provides how the money received by the Market Committees shall be invested and/or deposited. It provides that all money received by the Market Committee shall be credited to the fund called the Market Committee Fund. It further provides that all money paid into the Market Committee Fund shall be credited once a week in full into Government Treasury or sub-treasury, or a bank duly approved for this purpose by the Director and all balance from the fund shall be kept in such treasury or sub-treasury or bank and it shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opment Corporation from the industrial plot owners is liable for service tax or otherwise. 2. Sh. S.J. Vyas Ld. Counsel appearing on behalf of the appellant submits that the identical issue has been considered by the Hon ble Bombay High Court in the case of Maharashtra Industrial Development Corporation 2018 (2) TMI 1498. The issue has been settled that Maintenance Charges collected by State Industrial Development Corporation is not leviable to service tax. He relied upon following judgments: Maharashtra Industrial Development Corporation 2018 (2) TMI 289-CESTAT Mmubai Chhattisgarh State Industrial Development Corporation Ltd-2016 (6) TMI 367-CESTAT New Delhi Maharashtra Industrial Development Corporation 2014 (11) TMI 311-CESTAT Mumbai 3. Sh. T.G. Rathod Ld. Joint Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He also relied upon following judgments: Jeevanlal Joitaram Patel Co. Vs. CCE, Ahmedabad 2011 (23) STR 386 (Tri.Ahmd.) Chhattisgarh State Industrial Development Corporation Vs. CCE., Raipur 2011 (24) STR 494 (Tri.Del) 4. We have carefully considered the submissions made by both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory activity and the same is undertaken for consideration, then in such cases, service tax would be leviable, if the activity undertaken falls within the ambit of a taxable service. Thus, the language used in the 2006 Circular is clear, unambiguous and is capable of determining a defined meaning. 3. The effect of the decision of this Court in the case of Krishi Upaj Mandi Samiti (supra) vis-avis the functioning of the Gujarat Industrial Development Corporation under the Gujarat Industrial Development Act, 1962 ( the GID Act , for short) are required to be considered by the Tribunal in light of the law laid down by this Court in the case of Krishi Upaj Mandi Samiti (supra). 3.1 In that view of the matter, the impugned judgment and order passed by the Tribunal in appeal as well as the review application(s) are hereby quashed and set aside. The appeal (ST/436/2012) is ordered to be remitted back to the Tribunal. The Tribunal to take a fresh decision in light of the law laid down by this Court in the case of Krishi Upaj Mandi Samiti (supra). 4. The matter is remanded on the aforesaid limited aspect only and the Tribunal is directed to consider the effect of the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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