Ashok K. Arya ORDER
Ashok K. Arya, Member (T)
1. M/s. Indo Hong Kong Industries (P) Ltd. is in appeal against Order-in-Original number 4/2013-14 dated 29.11.2013 wherein inter alia demand of service tax of Rs. 1,02,21,578.00 along with interest and imposition of equivalent penalty has been confirmed against the appellant.
2. The brief facts are that the appellant provided its premises along with equipment on rent to M/s. Alcatel Development India Private Ltd. under separate agreements. The appellant is registered with service tax department under the category of "Renting of Immovable Property Services". The appellant had given two premises known as "Fortune Tower-I" and "Fortune Tower-II" owned by them to M/s. Alcatel Development India Private Limited for use as office, with two separate lease deeds. The appellant assessee leased the said premises along with high quality fire equipments, electrical systems, Air Conditioning plants, DG sets, elevators, fixtures and fittings, chairs, carpeting, pantry and kitchen equipments, music and PA system, access control and security system, etc.
2.1 The appellant has two separate agreements, one for renting of immovable property another for hiring of equipment and facilities. The appellant makes a mention that they did not provide any service/facility like engineering and maintenance service to run and maintain DG sets, AC plants, etc., it was only the service recipient i.e. M/s. Alcatel who is doing the same.
2.2 The Revenue's stand is that providing of office utilities, equipment and facilities by the appellant to the recipient is covered under Business Support Services(BSS), which has been defined under section 65(104c) of the Finance Act 1994. Therefore, the department has confirmed the liability of service tax in case of the amount collected under agreement-2 or 'hiring agreement' by the appellant assessee.
3. With the above background, we have heard learned CA Sh AK Batra on behalf of appellant and learned DR, Dr Neha Garg on behalf of Revenue. After having gone through the case records and submissions of both the sides, it appears that the appellant assessee provided certain equipments and facilities through a separate hiring agreement to M/s. Alcatel. The Revenue is claiming that providing said equipment/facilities are covered under the expression 'infrastructural support services' and would become part of the definition of 'support services of business or commerce' or Business Support service (BSS), as defined under section 65(104c) of the Finance Act, 1994.
3.1 The learned CA for the appellant during the hearing mentions that the assessee has been paying service tax for the amount collected under agreement 2 which is for hiring out equipment and facilities w.e.f. 01.06.2007 till 31.03.2010 under the category of "Renting of Immovable Property Services".
4. The total period involved in the appeal is from 01.05.2006 to 31.03.2010. If the claim of payment of service tax of the appellant for the period from 01.06.2007 to 31.03.2010 (though under the category of "Renting of Immoveable Property Services", not under "Business Support Services"), is taken into consideration then the demand is due only for the balance period i.e. from 01.05.2006 to 31.05.2007. In other words, the effective demand of service tax against the appellant is for the period of 01.05.2006 to 31........