CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
REGIONAL BENCH - COURT NO. 02
Service Tax Appeal No. 11716 of 2017-SM
[Arising Out Of OIA-CCESA-VAD-APP-II-VK-99-2017-18 Dated- 04/07/2017 Passed By Commissioner ( Appeals ) Commissioner of Central Excise, Customs and Service Tax- VADODARA-II)
The Surat District Co Operative Milk Producers Union Ltd ...Appellant
Post Box No. 501,Sumul, Sumul Dairy Road,
SURAT, GUJARAT
versus
C.C.E. & S.T.-Surat-I …..Respondent
New Building...Opp. Gandhi Baug, Chowk Bazar, Surat,
Gujarat-395001
APPEARANCE:
Shri. Akshay Modi, Chartered Accountant for the Appellant Shri. Himanshu P Shrimali, Superintendent (AR) for the Respondent
CORAM: HON'BLE MR. SOMESH ARORA MEMBER (JUDICIAL)
FINAL ORDER NO. 13115/ 2024_
DATE OF HEARING: 03.12.2024
DATE OF DECISION:03.12.2024
Learned Counsel appearing for the appellant states that in the present matter service tax has been demanded from the cooperative society on the ground that they have provided services to its members and charged for it for teaching them to test purity of milk etc., so that they could do so to convince themselves about the purity of the milk being supplied and payments being made to them. Department initially formed the view that this is "Commercial Coaching And Training Services" and therefore liable to service tax and demanded the service tax of Rs. 2,31,750/- for the period to April- 2012 to March-2013, invoking extended period. The Learned counsel further states that the issue is no longer res Integra and has already been decided in the case of N.I.B.S. & Corporate vs. CCE Noida as reported in (2013) 36 Texmann. com 117 (New Delhi). He states
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2 | P a g e S T / 1 1 7 1 6 / 2 0 1 7 - S M that the matter was again considered by the Commissioner (Appeals) in another matter. The same office of Commissioner (Appeals) in its order No. 370/2016/17 dated 24.11.2016 and on the basis of similar facts decided the matter against the department and the same has not been further contested by the department.
2. Learned AR appearing for the department states that there was no further challenge to the Commissioner (Appeals) order (cited supra) on the basis of monetary limit and therefore, the order cannot have any kind of a binding effect. He states that in any case in the order quoted by the other side of N.I.S.S (cited supra), the service was being provided to employees and that was the deciding factor in giving the verdict in favor of the party in that case.
3. Learned Counsel in its rebuttal states that in NIBS case training was being provided to employees of other Banks, and consideration was being received for such services. Even the same was held to be non-commercial service and has been correctly relied by the Commissioner (Appeals) in its order quoted by him.
4. This Court has considered the rival submissions. It finds that the case law in the matter of N.I.B.S & CORPORATE MANAGEMENT VS. COMMISSIONER OF C.EX., NOIDA -2013 (30) STR 170 (Tri-Del.) was delivered at stay stage and therefore was prima facie view which, inter alia, granted stay on the ground of extended period. The Order-In-Appeal quoted by the learned counsel suffers from the infirmity, as it has relied upon such interim order. Therefore, the matter is being considered on its own merits. The fact in this matter is the appellant is milk cooperative which was training its member to hone the skill of doing certain testing of milk. From the stated facts of the matter, it is apparent that an activity being in nature of furtherance of dairy farming is primarily an agriculture pursuit. If the society is providing services to its own members even then as per the trite law it cannot be considered as a service even if there are some charges involved.
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3 | P a g e S T / 1 1 7 1 6 / 2 0 1 7 - S M It cannot also be stated the co-operative is doing such activity out of any commercial consideration. Therefore the taxability does not get attached to such activities.
5. In view of the foregoing, the demand cannot be sustained, the order of lower authority is therefore set aside with consequential relief to the appellants.
Appeal allowed.
(Dictated and pronounced in the open Court)
(SOMESH ARORA)
MEMBER (JUDICIAL)
Prachi
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