Custom, Excise & Service Tax Tribunal
Commissioner Of Service Tax, Mumbai Ii vs M/S. Cms Securities Ltd on 12 July, 2016
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
ST/550/12
- Mum
(Arising out Order-in-Original No. 52/ST-II/WLH/2012 dated 04.05.2012 passed by the Commissioner of Service tax, Mumbai - II)
For approval and signature:
Honble Shri M.V. Ravindran, Member (Judicial)
Honble Shri Devender Singh, Member (Technical)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Commissioner of Service tax, Mumbai II
Appellant
Vs.
M/s. CMS Securities Ltd.
Respondent
Appearance:
Shri A.B. Kulgod, AC(AR) for the appellant Shri M.H. Patil, Advocate for the respondent CORAM:
Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri Devender Singh, Member (Technical) Date of hearing : 12-07-2016 Date of decision : 12-07-2016 O R D E R No: ..
Per: M.V. Ravindran This appeal is filed by the Revenue against Order-in-Original No. 52/ST-II/WLH/2012 dated 04.05.2012.
2. Heard both sides and perused the records.
3. The issue involved in this case is regarding the service tax liability on the operations undertaken by the respondent in respect of ATM. It is the case of the revenue in the show-cause notice that the respondent for the period 2004-05, 2008-09 had rendered the services of Management, Maintenance and Repair services when they erect ATM machines for various banks and that appellant is also liable to discharge the service tax on Business Auxiliary Service when they have written off bad debts in the financial year 2007-08 and 2008-09. Respondent contested the show-cause notice on the ground that service tax liability does not arise on them under the Management, Maintenance and Repair services of ATM as the service tax liability on ATM operation as Management, Maintenance and Repair services was brought under service tax net from 01.05.2006 for which they have already discharged the service tax liability. For the earlier period, tax liability does not arise. The Adjudicating Authority after considering the factual position and evidence brought on record dropped the proceedings initiated by the show-cause notice in respect of demand of the service tax under the category of Management, Maintenance and Repair services. Aggrieved by such an order, revenue is before us.
4. We find from the records the Adjudicating Authority was correct in dropping the proceedings initiated for more than one reason. Firstly, the service tax liability on ATM operation as Management, Maintenance and Repair services was brought under the service tax net from 01.05.2006. The activity conducted by the respondent of erection of ATM maintenance thereof was sought to be taxed under the Management, Maintenance and Repair services for the earlier period holding that the ATM machine is also a machine. We find that the argument put forth by the ld. Departmental Representative is erroneous as specific category of the service tax liability on ATM operation as Management, Maintenance and Repair services has been introduced from 01.05.2006 would itself indicate that earlier the said services were not taxed. It is undisputed that the respondent is providing only this service.
5. Secondly, the demand of the tax liability in the show-cause notice is also on the cleaning services holding that the respondent is providing cleaning services. On perusal of the records, we find that the cleaning activity undertaken by the respondent is in respect of soiled notes stuck in the machine, various other operations of the ATM machine and removal of waste paper in and around the machine. Agreement entered by the respondent with their service recipient clearly indicate that the cleaning activity in respect of ATM Machine only.
6. In view of the foregoing, we find that the Adjudicating Authority was correct in dropping the proceedings initiated by the show-cause notice. Our view is fortified by the judgement of the Tribunal in the case of NCR Corporation India Pvt. Ltd. 2008 (12) STR 68 wherein identical issue was decided in favour of the assessee.
7. In view of the foregoing, in the facts and circumstances of this case, and the authoritative judicial pronouncement, we hold that the appeal of the revenue has no merits and is liable to be rejected and is rejected.
(Operative part pronounced in Court) (Devender Singh) Member (Technical) (M.V. Ravindran) Member (Judicial) //SR
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ST/550/12