Case Law Details
Mira Bhaindar Municipal Corporation Vs Commissioner of CGST & Cen. Excise, Thane (CESTAT Mumbai)
The crux of the submissions made by the appellant who is a Municipal Corporation is that these services (Ground rent market/ sports ground rent, Permitted Stall ground Rent, BOT Lease Rent, Blood bank and Mandap Services) rendered by them are mandated in terms of Article 243W of the Constitution of India, read with Schedule 12 and hence fall in the category of exempted services.
We are in agreement with the observations made by the Commissioner to the effect that just because the services under consideration have been provided by Municipal Authority, the same cannot be said to be a service covered under Article 243 read with Schedule 12 of Constitution of India. Hence the arguments advanced by the appellant counsel to that effect cannot be sustained, more so over when they themselves have admitted there liability to pay service tax in respect of services under category of BOT, Mandap & Renting of Space to Blood Bank. We agree with the submissions of the appellant to effect that the value of tax able services under these category needs to be redetermined after taking into account the relevant and admissible deductions.
In respect of the services under the category of Renting of Stall etc., it is the submission of the appellant, that the amount collected by them is fees for providing small space to the street hawkers etc, for selling their goods etc., and is part of their Constitutional Duty for the upliftment and social welfare of the poor. It has also be submitted on the basis of the decisions of Hon’ble Supreme Court, wherein it has been held that street vending and selling is fundamental right of such hawkers and as per directive of the Hon’ble Supreme, Rules and Regulations have been framed to provide for the street vending and space for street hawkers. In terms of these rules and regulations some minor fee is levied for upkeep and providing facilities to such street hawkers. To the extent the space is provided to the poor for the purpose of street vending and street hawking, we would agree with the submission made by the appellant, but the same cannot be true in case of the shops and stalls rented out. Contrary has been held by the Mumbai Bench in case of Murmogoa, referred earlier by us. In our view the matter needs to be reconsidered by the original authority and suitable determination made.
FULL TEXT OF THE CESTAT MUMBAI ORDER
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