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Kasturi & Sons Ltd V/S Principal Commissioner of GST & Central Excise, Chennai North Commissionerate


Company & Directors' Information:- KASTURI & SONS LIMITED [Active] CIN = U22110TN1940PLC001091

Company & Directors' Information:- KASTURI (INDIA) PRIVATE LIMITED [Active] CIN = U22121DL1998PTC093714

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- B SONS (INDIA) PRIVATE LIMITED [Active] CIN = U22110DL1997PTC090730

Company & Directors' Information:- F SONS PRIVATE LTD [Strike Off] CIN = U51900WB1982PTC035114

Company & Directors' Information:- G C AND SONS PVT LTD [Strike Off] CIN = U72100ML1987PTC002697

    Appeal No. ST/Misc./40867/2017, ST/40543/2017 (Arising out of Order-in-Appeal No. 678/2016 (STA-I) dated 28.11.2016 passed by the Commissioner of Service Tax (Appeals - I), Chennai) and Final Order No. 41939/2018

    Decided On, 02 July 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONORABLE JUSTICE: SULEKHA BEEVI C.S.
    By, MEMBER

    For Petitioner: T.R. Ramesh, Advocate And For Respondents: R. Subramaniam, AC (AR)



Judgment Text


1. Brief facts are that the appellants is a publisher of newspapers 'The Hindu, Business Line' and magazines such as 'Front Line' and 'Sports Star' and also engaged in providing various other services. During the course of audit, it was observed that the appellant had conducted various competitive programmes for kids and students in the field of painting and quiz competition etc. They had received sponsorship from various sponsors for conducting the above programme and collected service tax for the sponsorship services provided by them. It appeared that in terms of Rule 2(1)(d)(viii) of Service Tax Rules, 1994, the recipient of sponsorship service is to discharge the service tax liability. The appellant has thus wrongly collected the service tax on sponsorship service and paid the same to the Central Government. The department was of the view that appellant being not eligible to pay service tax for sponsorship services, the input service availed for providing output service namely sponsorship service is not eligible for credit. Show cause notice was issued proposing to demand the ineligible input service credit of Rs. 10,88,958/- along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand along with interest and imposed equal penalty. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal.

2. Ld. Counsel Shri T.R. Ramesh appeared and argued the matter on behalf of the appellant. He submitted that the various input services like mandap keeper service, interior decorator service, quiz master service etc. were availed for conducting events such as quiz competition, painting competition etc. The appellant had provided sponsorship services for conducting all these events. By mistake, the appellant had collected the service tax in respect of sponsorship service but had remitted the same to the Central Government. The department now alleges that the input services availed for providing the sponsorship services are not eligible for credit. Merely because the appellant had wrongly discharged the service tax on sponsorship services instead of the service recipient, the input services cannot be held to be ineligible for credit. Since the sponsorship services are taxable services, for which the input services were used by the appellant, the department has wrongly denied the credit. He submitted that there are several decision which have held that even though the process does not amount to manufacture, the credit availed on the inputs cannot be denied and the same analogy shall be applied to the facts of the present case. He relied upon the decision in the case of Vinayak Industries reported in : 2003 (159) ELT 456. It is also pointed out by him that the department has not issued any show cause notice to the service recipient of the sponsorship services and the service tax on such services has been discharged by the appellant. The ld. counsel vehemently argued on the ground of limitation and submitted that the appellant had reflected all these details in their ST-3 returns which is admitted by the department in para 3.15 of the adjudication order. The period involved is from 2006-07 to September 2009 whereas the show cause notice has been issued only on 14.10.2011, much after the normal period. Apart from a bald allegation that the appellant has suppressed the facts with intent to evade payment of service of tax, there is no iota of evidence to establish that the appellant is guilty of suppression of facts with intent to evade payment of service tax. At the most, it was only an erroneous payment of service tax on the part of the appellant. Instead of the service tax being discharged by the service recipient in the case of sponsorship services, the appellant discharged the service tax by collecting the same from the service recipient. The input services were used for the output services and therefore the credit availed is eligible.

3. The ld. AR Shri R. Subramaniam supported the findings in the impugned order. He submitted that the appellant is not liable to pay service tax on sponsorship services. The service recipient ought to have paid the same. The appellant has wrongly collected the service tax on sponsorship services and utilized the credit on various input services to discharge the payment of service on sponsorship service. Thus, the input services used for providing the output service namely sponsorship services are not eligible for credit. He relied on the decision of the Tribunal in the case of Jaipur IPL Cricket Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai : 2015 (38) STR 1193 (Tri. Mumbai). He adverted to para 3.20 and 3.21 of the adjudication order and submitted that the intention of the assessee to suppress the facts in an intelligent manipulative way to evade payment of service tax and utilization of inadmissible CENVAT credit by showing available credit which should not have been available to the appellant. Therefore, the extended period has been correctly invoked which is legal and proper.

4. Heard both sides.

5. The demand arises out of the basic allegation that the appellant has wrongly paid the service tax on sponsorship service when actually service recipient ought to have paid. For the same reason, the department alleges that for various input services like mandap keeper service, interior decorator service etc. consumed by the appellant used for the purpose of providing sponsorship service is not eligible for credit. The department has no case that the appellant has not paid the service tax on these input services nor is there a case that they are not used for providing sponsorship service. The only allegation is that the appellant ought not to have collected the service tax on sponsorship service. Generally, it is the output service provider who has to pay the service tax and in some cases like sponsorship services, the Service Tax Rules provide that the liability to pay service tax is upon the service recipient. Appellant has collected service tax wrongly from service recipient and paid to Central Government instead of the service recipient paying it directly to Central Government for sponsorship services. For the mere same reason, it is alleged that the credit has been wrongly availed on various input services used for providing sponsorship services. In para 3.15 of the adjudication order, it is brought out that the appellant has declared the credit of service tax paid on input services in their ST-3 returns. Thus, the credit availed as well as the service tax paid has been correctly reflected in their ST-3 returns. Other than this allegation of wrongly paying the service tax on sponsorship service, I do not find any evidence of positive act of suppression of fact with intent to evade payment of service tax on the part of appellant. All the allegations stems out of the main allegation that the appellant ought not to have discharged the service tax on sponsorship service and that it is the service recipient who has to pay the service tax. It is not the case that sponsorship services are not taxable output service for the appellant. On the mere ground that the appellant has wrongly discharged the service tax on sponsorship services, the entire demand has been raised. I find that there is no iota of evidence to establish that there was any willful intention on the part of the appellant to evade payment of service tax by suppression of facts. The Tribunal in the case of Real Talent Engineering Ltd. Vs. CGST & CE, Chennai in Final Order No. 41808 & 41809/2018 dated 13.6.2018

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had occasion to analyse the eligibility of credit in respect of Manpower Supply services, where the assessee who is the service recipient has to discharge 75% of service tax directly to the Government. Though instead of paying on 25%, the service provider collected the entire tax from the assessee and paid to Government. The assessee thus availed credit on 10% of the service tax which according to department was not eligible. The Tribunal held in favour of assessee. From the above discussions, I hold that the demand raised for the extended period cannot sustain and requires to be set aside, which I hereby do. 6. In the result, the impugned order is set aside on the ground of limitation and the appeal is allowed with consequential relief, if any. The miscellaneous application filed by Revenue for change of cause title is allowed.
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