Mumbai Police Vs. Commissioner of Service Tax (CESTAT Mumbai)
Brief facts of the case are that the Appellants are providing security to banks, individuals, security for cricket matches, IPL, World Cup, Mumbai Port Trust, Mazagaon Dock, Tata Power, FCI and for other functions. They were issued show cause notice demanding service tax on the charges recovered by them for providing security on the ground that they are liable for service tax under the category of “Security Agency Services”. The demand was confirmed by the adjudicating authority alongwith interest and penalty u/s 76, 77 and 78 were also imposed. Hence the present appeal.
Appellant submits that the police is deployed to individuals or to places for the purpose of maintaining law and order. That they perform sovereign functions as held in case of Dy. Commissioner of Police, Jodhpur 2017 (48) STR 275 AND Dy. Inspector General of Police 2017 – 1 1-TMI-346 and thus not liable for tax.
On appeal CESTAT held that “police department, which is an agency of the State Govt., cannot be considered to be a “person” engaged in the business of running security services. Consequently, the activity undertaken by the police is not covered by the definition of Security Agency under Section 64(94) of the Act. We also find that in terms of C.E. & C. ‘s circular on this subject, the fees collected by the police department is in the nature of fee prescribed for performing statutory function, which has been deposited into the Govt. treasury. In the light of the C.B.E. & C. ‘s circular also, there can be no levy of service tax on such activities carried out by the police department.”
FULL TEXT OF THE CESTAT ORDER IS AS FOLLOWS:-
Brief facts of the case are that the Appellants are providing security to banks, individuals, security for cricket matches, IPL, World Cup, Mumbai Port Trust, Mazagaon Dock, Tata Power, FCI and for other functions. They were issued show cause notice demanding service tax on the charges recovered by them for providing security on the ground that they are liable for service tax under the category of “Security Agency Services”. The demand was confirmed by the adjudicating authority alongwith interest and penalty u/s 76, 77 and 78 were also imposed. Hence the present appeal.
2. Shri S.S. Gupta, ld. CA appearing for the Appellant submits that the police is deployed to individuals or to places for the purpose of maintaining law and order. That they perform sovereign functions as held in case of Dy. Commissioner of Police, Jodhpur 2017 (48) STR 275 AND Dy. Inspector General of Police 2017 – 1 1-TMI-346 and thus not liable for tax. That no proceedings can be initiated against the Appellant without implicating the State as held in case of Divisional Railway Manager 2014 (34) STR 297. He submits that the issue is no more disputed as it stands decided in case of Appellant.
3. Shri Roopam. Kapoor, ld. (AR) supports the impugned order and reiterates the findings of the adjudicating authority.
4. Heard both the parties and perused the cited case laws and facts of the case. We find that the issue is no more res-integra in the light of the Tribunal’s various judgments. In case of DY. COMMISSIONER OF POLICE, JODHOUR Vs. CCE & ST 2017 (48) STR 275 (TRI) the Tribunal has held that service tax demand is not sustainable. The relevant findings of the Tribunal is as under :
“8. The question for decision is whether the State Police represented by the Superintendents of Police of various districts, would be covered within the definition of security agency services and service tax will be liable to be paid by them on the amounts recovered by them for providing security personnel to various organizations. Further, they were also sending police personnel for character verifications of candidates selected for various jobs and collecting charges but they neither got the registered with the Department nor did they pay service tax on such amounts recovered.
As per Section 65(94) of the Finance Act, 1994, the definitions of “Security Agency” as well as “Security Agency Service” are given below for ready reference :-
‘Security Agency~ means any person engaged in the business of rendering services relating to the security of any property, whether movable or immovable, or of any person, in any manner and includes the services of investigation, detection or verification, of any fact or activity, whether of a personal nature or otherwise, including the services of providing security personnel.’
9. The other relevant circular issued by C.B.E. & C. is Circular 89/7/2006-S.T., dated 18-12-2006 is reproduced below : “The activities assigned to and performed by the sovereign/public authorities under the provisions of any law are statutory duties. The fee or amount collected as per the provisions of the relevant statute for performing such functions is in the nature of compulsory levy and are deposited in the Govt. Account. However, if a sovereign or public authority provides a service, which is not in the nature of statutory activity and the same is undertaken for consideration (not a statutory fee), then in such cases service tax would be leviable as long as the activity undertaken falls within the scope of a taxable service as defined.”
10. The appellants have argued that the term “person” appearing in the definition must be construed to be a natural person as well as a juristic person and by no stretch of imagination, the same will include the State or its officers or the posts created under a statute. They cited the judgment of the Constitution Bench of the Hon’ble Supreme Court in the case of West Bengal v. Union of India [AIR 1963 SC 124] in which the Apex Court has held as under :-
“the definition is an enlargement of the natural meaning of the expression ‘person’, even the extended meaning does not include the State.”
Their submission is that Superintendent of Police is an authority of the State Govt. to carry out statutory and constitutional duties. The definition of the term “person”, (which does not cover the Govt.) in the General Clauses Act, 1897 is given as follows :-
“42. “Person” shall include any company or association or body of individuals, whether incorporated or not, “.
In the light of the definition of the term “person” in the General Clauses Act, 1897, which has also been examined and clarified by the Apex Court, it would appear that the Superintendent of Police, which is an agency of the State Govt. does not appear to be covered within the term “person”. It is also noteworthy that in the year 2012 when the pattern of levy of service tax was changed and the concept of negative list was introduced with effect from 1-7-2012, a definition was introduced for the term “person” in Section 65B(37), of the Act, which includes the Govt., local authorities, etc. From this, it is evident that such a definition for the term “person” has become part of the statute only from this date. To decide the meaning of “person” up to this date, we will have to refer to the General Clauses Act, 1897 as well as relevant case laws. The Apex Court has clearly held that the definition of “person” cannot be extended to include State. Consequently, we are of the view that the Superintendent of Police will not be covered within the term “person”.
11. The second leg of the argument advanced by the appellants is that they are not engaged in the business of rendering services relating to security. Their submission is that the occupation in business by a person is a condition precedent for a security The lower authority has held that the term “business” does not signify any commercial activity for the purpose of gaining something out of the said activities, but the same has been used in terms of the work. He has accordingly held that as long as consideration is being received by police for providing security service, it is to be presumed to be in the nature of business.
The term “business” connotes that it is an activity undertaken with the intent of earning profit. The charges recovered by police are in the nature of cost recovery for the additional police force deployed on request for maintaining security and law and order. It is also the submission of the police department that the deployment of additional police force at the request of banks and other institutions or other events has been done only for maintenance of law and in the absence thereof there could arise major security issues in relation to person or property. In the light of the submissions made, we are of the view that the activities undertaken by the police, for which charges have been recovered, cannot be held to be in the nature of business activity.
12. Now, we turn to the C.B.E. & C. Circular No. 89/7/2006- T., dated 18-12-2006. The circular has indicated under what conditions an activity performed by a sovereign/public authority should be categorized as one which is liable to payment of service tax. The circular clarifies that charges recovered by any sovereign/public authority for carrying out any statutory function will not be liable for levy of service tax if all the following conditions are satisfied :-
(a) Sovereign/public authorities perform duties which are in the nature of statutory and mandatory obligation to be fulfilled in accordance with the law.
(b) The fee collected should be levied as per the provision of relevant law.
(c) The amount collected is to be deposited into Government treasury.
The satisfaction of each of the above three conditions is analysed below :-
(i) A sovereign/public authority performs duties which are in the nature of statutory and mandatory obligation to be fulfilled in accordance with law.
The Superintendent of Police is an extended arm/instrumentality/ agency of the State Government and is controlled and managed by the State Government. It is carrying out the activities as entrusted to it vide the Police Act which are statutory and constitutional in nature. The appellant is required to discharge these statutory obligations for public security and maintenance of public peace and order. The appellant cannot carry out any activity beyond the legislative competence. The user charges are levied by the State Government for the deployment of Police Force for the maintenance of public peace, security and law and order as per Section 46 of the Police Act, Section 46 is reproduced below :-
“46. Payment for police service. – The State Government may levy from any person, who carries on any such occupation, gathering, exhibition, sale, entertainment, etc., for monetary gain, as may, for the purpose of public security or for the maintenance of public peace or order, require deployment of additional police force, such user charges as may be prescribed.”
(ii) The fee collected should be levied as per the provision of relevant law.
The State Government, in exercise of powers conferred under Section 46 of the Police Act issued two notifications wherein the charges to be recovered for providing additional police force for the purpose of maintaining public security and law and order have been notified. Notification number 27(2)Home/Gr.-6/84, dated 19-5-2008 which notifies the charges for police arrangement in Central Government offices/institutions/banks and other organizations, and notification number F. 1(K)(16)Gr.- 2/05, dated 15-1 -2008 which notifies the charges to be recovered on providing/deploying/rendering police force for security purposes. In the notification number dated 19-5-2008, the charges fixed per day are as follows:
