1. The appellant is engaged in providing services covered under the category of clearing services, security agency services, etc. and is registered with the Service Tax Department accordingly. Their premises in Lucknow were visited by the Central Excise Officers on 19-7-2010 and various checks and verifications were conducted. It was seen that the appellant, Head Office in Patna and regional offices were at Lucknow as also at Patna. A panchnama dated 19-7-2010 was drawn and discrepancies were found in the monthly computer records maintained for the financial year 2007 to 2010. Statements of various persons were recorded and based upon the same proceedings were initiated which resulted in passing of the impugned order by the Commissioner (Appeals). Learned Advocate submits that in the year 2008-2009 there was embezzlement of Service Tax by one of their employees. Instead of paying the tax to the exchequers, it was being pocketed by him. However, he is not disputing the fact that he has to pay the service tax for the said period. The only contention of the appellant is that while computing the service tax a wrong computation has taken place. Further explaining, he submits that for month of April, Revenue has picked up the figures from the month of May and for the month of May, the figures stand picked up from the month of June and so on. This has related in travelling to the period one month beyond the period of embezzlement, for which they have already paid the service tax. This wrong computation according to Learned Advocate, has related in confirmation of excess demand to the extent of Rs. 3,03,469/-.
Inasmuch as the said issue relates to the factual position, which can only be verified at the level of Original Adjudicating Authority, we deem it fit to remand the matter for verification of the said claim of the assessee.
2. Further, Learned Advocate submits that they were having one branch at Lucknow, which was serving customers located in Bareilly, Lucknow and Varanasi. On account of the pressure of the work, the said branch was bifurcated into East and West Lucknow. With such bifurcation some of the clients fell under East Branch and some fell under West Branch. Inasmuch as the entire accounts were being maintained at Lucknow Branch, the balance available with them for each and every customer was transferred to their accounts falling under two different branches. Revenue by entertaining a view that such amount is on account of services provided by them to each customer raised the demands on that amounts also on which they had already paid the service tax.
We note that the said plea of the appellant relates to the factual ground of the records for which purpose we remand the matter to the Original Adjudicating Authority to examine the records and accordingly deal with the said plea of the assessee. Needless to say that the appellant would be given an opportunity to put forth their case.
3. The other issue required to be decided is as to whether the comprehensive fire services provided by the appellant to M/s. Tata Motors Limited would attract service tax under the category of "Security Agency Services". The appellant have contended that such comprehensive fire services to be provided by them to the service recipient are for the purpose of protecting the property of M/s. Tata Motors Limited by providing trained fireman etc. and as such the same would not be covered under the definition of "Security Agency Service".
4. After hearing the Ld. AR for the Revenue we find that "Security Agency Services" is defined in Section 65(94) of Finance Act, 1994 which 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 of verification of any fact or activity, whether of a personal nature or otherwise, including the services of providing security personnel.
As is seen from the above definition, "Security Agency Services" are basically and primarily related to the security of any property. The use of the expression "in any manner", widens the scope of the said services. If the services provided relates to the security of the property, they would attract service tax under the said category. Admittedly, in the present case, the appellant are providing services for security of their customer's property from fire. The same would get covered under "Security Agency Services" inasmuch as the definition of the said services nowhere specifies a particular type of security of the property and further it does not exclude any particular type of service relating to security of the property. Inasmuch as, the comprehensive fire services being provided by the appellant are relatable to the security of the property of their client, they get fully covered with the definition of "Security Agency Services". Accordingly, we hold that the demand stands correctly confirmed against the appellant on the said count.
5. The appellant have also contested the demand on the point of limitation. We find that the appellant was discharging service tax liability in respect of identical services being provided by them to M/s. HAL, Lucknow. This establishes that the appellant was aware of the fact that the comprehensive fire services being provided by them would attract service tax liability under "Security Agency Services". The appellant have not given any valid reason that why the service tax was being paid in respect of the services offered by them to M/s. HAL where they were discharging service tax in respect of services provided to M/s. TML. This only reflects upon the mala fide of the appellant thus justi
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fying the invocation of extended period. For the same reason, the imposition of penalty upon them is justified. Accordingly, we find no merit in the above plea of the appellant and uphold the impugned order to that extent. 6. In ST Appeal No. 56019/2013 CU(CDB), filed by the Revenue, the identical issue of the taxability of the comprehensive fire services being provided to M/s. TML is involved. As we have observed that the said service would come under the "Security Agency Services", we set aside the impugned order passed by the Commissioner (Appeals) and allow the Revenue's appeal. Both the appeals are disposed of accordingly.