Page 159 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] PEARL TRAVELS v. COMMISSIONER OF C. EX. & S.T., DAMAN 245
5. Shri K.J. Kinariwala, Learned Assistant Commissioner (Authorized
Representative) appearing on behalf of the revenue reiterates the finding of the
impugned order. He submits that the issue as regard rent a cab operator service
has been settled by the jurisdiction of the High Court in the case of Vijay Travels
(supra). Therefore, the demand was rightly made by the adjudicating authority.
As regard limitations, he submitted that the case was unearthed only on the basis
of audit conducted in the factory of M/s. Welspurn till then the appellant activity
was not known to the department. Therefore, there is a clear suppression of fact
on the part of the appellant, hence, the extended period for the demand was
rightly invoked.
6. We have heard both the sides and perused the records. As regard the
demand under the category of rent a cab operator service we find that as of now
the issue is decided against the appellant as per the judgment of Hon’ble Gujarat
High Court in the case of Vijay Travel (supra). Therefore, the demand on merit is
clearly sustainable. As regard the limitation we find that the identical issue in the
judgment of Vijay Travels itself the Hon’ble Gujarat High Court against the ques-
tion No. 5 answered in negation and in favour of the assessee the said question is
reproduced as under :-
“Whether the Tribunal committed error in interpreting proviso to Section
73(I) of the Finance Act and erred in holding that the Show Cause Notice is-
sued to the assessee was barred by limitation though assessee failed in fil-
ing any return or providing information constraining department to issue
summons for the information from the assessee by willingly suppressing
information from the department?”
7. In view of the above Hon’ble Gujarat High Court Judgment the de-
mand for extended period is not sustainable, as regard the demand under busi-
ness support service. We reproduce the definition of business support service.
“(104c) ”support services of business or commerce” means Services pro-
vided in relation to Business or Commerce and includes evaluation of pro-
spective customers, telemarketing processing of purchase orders and ful-
fillment services, information and tracking of delivery schedules, managing
distribution and logistics, customer relationship management services, ac-
counting and processing transactions, (operational or administrative assis-
tance in any manner), formulation of customer service and pricing policies,
infrastructural support services and other transaction processing.
Explanation : - for the purposes of this clause, the expression “infrastructural
support services” includes providing office along with office utilities,
lounge, reception with competent personnel to handle massages, secretarial
services, interne) : and telecom facilities, pantry and security.”
8. In the above definition we find that under clause (104C) the defini-
tion starts with the words “Services Provided in relation to business or com-
merce” and thereafter in the inclusion clause same names of the services are pro-
vided. We find that as per the clear definition, the services primarily should have
a support service in relation to business/commerce.
In the present case the appellant have provided the support service of
providing driver, cleaner and maintenance of buses which are owned by the
company M/s. Welspun. There is no doubt or dispute that M/s. Welspun is an
GST LAW TIMES  11th June 2020  159