It may be stated that the matter of classification was not jurisdiction of a single Member Bench of Tribunal as has been done by order dated 4.5.2006 in ST/03/2006 contrary to mandate of section 129C(4) of Customs Act, 1962 as adopted by section 83 of Finance Act, 1994. So also when service tax demand was Rs. 22,48,432/- (Ref: page 56 of appeal folder) in the earlier adjudication.
In this case, the factory is located in a village and the village does not have adequate facilities for employees and therefore to get the proper employees, it becomes necessary for the assessee to provide transportation facility from the nearest city. Therefore, it cannot be said that the assessee is providing transportation facility to its employees as a welfare measure, but it is necessity to ensure that the manufacture takes place properly. Therefore, in the case before me, it can be said that the service has a relation to the business of manufacture and has a nexus.
The short point in question is whether only a registered trademark has a right under any law for the time being in force In India and whether any law other than enacted law In force In India will come within the meaning of any law for the time being in force.
If there is no transfer of right of possession and effective control of the aircraft to the appellants. However, the findings arrived at by the adjudicating authority clearly point out to one fact that aircraft is required to be maintained, operated and controlled by the appellants. If that be so, at this prima facie stage, we note that the appellants do not satisfy the definition of said service.
Appellant has undertaken the activity of harvesting sugarcane and its transportation to sugar factory from the fields of farmers and this activity is in relation to sale of sugarcane by farmers and purchase of sugarcane by the sugar factory and service provided by a commission agent. In view of this finding, we find that the appellant is entitled for the benefit of Notification No. 13/2003-ST which provides exemption from payment of service tax in respect of service provided under “Business Auxiliary Service” in relation to the sale of agricultural products.
On a perusal of the definition of franchise given under Section 65(47) under the Finance Act, 1994, we note that it refers to an agreement by which the franchisee is granted representational right to provide service identified with the franchisor whether or not any ‘service mark’ is involved. Prima facie, in the absence of such an agreement, the appellant themselves would have provided the service to the people/State Government in respect of the bridge under the BOT agreement.
Similarly, if the air travels were undertaken by the company’s executives for business purposes, the necessary nexus between the service and the business activities of the appellant does exist. The show-cause notice did not even attempt to make out a case to the contra. Therefore, the case of the appellant is liable to be accepted.
As regards the demand for payment of an amount @ 8% of the value of the exempted goods under Rule 57CC of the Central Excise Rules, 1944 made out in the show-cause notice, it has been noted that the appellants have not availed any credit of the duty paid either on the raw materials supplied by the principal manufacturer or on the raw materials used by them on their own account in the manufacture of job-worked product. When they have not availed any credit of the duty paid on the raw materials, the question of payment of duty @ 8% of the value of the exempted product under Rule 57CC will not arise at all.
Providing service of payment and receiving money on behalf of the government in respect of various transactions such as public deposit, RBI bond, EPF, senior citizen saving scheme, compulsory deposit scheme etc. does not fall under the category of Banking and Financial service and the above activity is exempt from banking and financial services. As the issue has attained finality by the order of the Tribunal in Canara Bank (supra) therefore following the same, we hold that the appellant are not liable to pay service tax confirmed against them by way of impugned order and we set aside the demand of service tax.
As per the definition of input service under rule 2 (1) of the Cenvat Credit Rules, 2004, it includes services used in relation to modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage up to the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation up to the place of removal, but excludes services specified in (A) (B) (BA) & C of the said definition.
