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TMI Blog2024 (11) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... iny of the said Refund claim filed by the assessee, department observed that the assessee has sought refund of service tax paid by them on the taxable value Rs. 5,44,29,757/- charged as service fee (cess) from their 21 milk unions during the period 01.04.2014 to 30.06.014, for which they issued invoice no. 79 to 96 all dated 20.07.2014 and issued debit note no. 50648-65 to milk unions. The assessee also recovered service tax Rs.56,37,495/- by issuing general voucher No. 270 dated 07.11.2014 from milk unions and issued debit note No. 50666-83 for the same. 3. However, as per decision in proposal No. 23(7) of Annual General Meeting of RCDF held on 26.09.2014 with the share holders (Unions) unanimously decided to waive of service fee (cess) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharged by the Appellant under the Finance Act, 1944 (hereinafter referred to as the 'Act'). For the period 01.04.2014 to 30.06.2014, the Appellant charged a service fee of Rs. 5,44,29,757/-. However, vide decision of Annual General Meeting dated 26.09.2014, as was documented through Order No. 28809-63 dated 13.10.2014, it was decided that the milk cess charged from the milk unions for the period 01.04.2014 to 30.09.2014 be waived off. In compliance with the order, the Appellant issued a Journal Voucher No. 271 dated 07.11.2014 for reversal of service fee of Rs. 5,44,29,757/- and credited this amount to the accounts of the milk unions. Further, Credit Note Nos. 50702-19 dated 23.03.2015 were issued to the milk unions to refund the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the Appellant and the milk unions. 11. In this regard, the Appellant submits that as per the Black's Law Dictionary (Eighth Edition, 2004), the term 'renegotiate' means the act or process of negotiating again or on different terms; a second or further negotiation. In the present case, the consideration for promotion and marketing services has been negotiated again from a pre-decided amount to NIL. 12. The present refund application pertains to the period when the negative list regime was in force, where the levy of service tax under Section 66B required the presence of a 'service' as defined under Section 65B(44) of the Act. In order for a transaction to qualify as a 'service', it is the prerequisite that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees taken in any Court or tribunal established under any law for the time being in force. Explanation 1.-For the removal of doubts, it is hereby declared that nothing contained in this clause shall apply to,-- (A) The functions performed by the Members of Parliament, Members of State Legislative, Members of Panchayats, Members of Municipalities and Members of other local authorities who receive any consideration in performing the functions of that office as such member; or (B) The duties performed by any person who holds any post in pursuance of the provisions of the Constitution in that capacity; or (C) The duties performed by any person as a Chairperson or a Member or a Director in a body established by the Central Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Commissioner vs. Larsen and Toubro Limited, 2016 (44) STR 391 (Gujarat) (iii) Raje Vijaysingh Dafale SSK Limited vs. CCE, Kohlapur, 2015 (38) STR 1056 (Tribunal-Mumbai) 16. It is already observed that prior to the waiver of service fee, the activities undertaken by the Appellant qualified as a taxable service in terms of Section 65B(44) of the Act, wherein the Appellant carried on the promotion, marketing, analysis, etc, of the business of the milk unions. Further, the Appellant also discharged service tax on the service fee received from the milk unions. Since, preceding the full waiver of service fee, there is no dispute that the Appellant was rendering a 'service' to the milk unions and that post waiver the appellant has i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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