2010 (6) TMI 667 - Commissioner - Service Tax

Levy of service tax - stand fees - The Stand fees are a statutory levy of the local State Government - Collection of stand fee is not for any specific service rendered by them, but is a flat rate of charge to one category of buses namely, private bus operators, it cannot be said that the amount so collected is by way of service charge - whether the stand fees is classified under Business Support services or otherwise and is taxable or otherwise? - Held that - The stand fees are for enhancing the revenue of the KTC to cope up with the stand maintenance expenditures. Service tax can be demanded only when KTC collects service charge for any of the services rendered by them - Collection of stand fee is not for any specific service rendered by them, but is a flat rate of charge to one category of business namely, private bus operators, it cannot be said that the amount so collected is by way of service charge. Therefore, no service tax is payable for the stand fees collected by the appellant. Revision allowed - decided in favor of assessee.

Issues Involved:
1. Whether the collection of stand fees by KTC amounts to a state statutory levy and is not subject to service tax.
2. Whether bus terminal services are taxable under service tax.
3. Whether service tax is applicable under business support services for bus stands created as public utility services.
4. Whether stand fees are in the nature of parking fees and thus exempt under renting of immovable property services.
5. Applicability of interest under Section 75 if the service itself is not taxable.
6. Entitlement to relief under Section 80 from penalties levied under Section 77.

Issue-wise Detailed Analysis:

1. State Statutory Levy and Service Tax:
The judgment establishes that the stand fees collected by KTC are a statutory levy authorized by the State Government and regulated by the District Magistrate. The collection of these fees is for the maintenance of bus stands and not for any specific service rendered. Therefore, the collection of stand fees does not fall under "service charge" and is not subject to service tax. The judgment states, "Collection of stand fee is not for any specific service rendered by them, but is a flat rate of charge to one category of buses namely, private bus operators."

2. Taxability of Bus Terminal Services:
The judgment clarifies that bus terminal services have not been made taxable under service tax, unlike port services or airport services. The CBEC has framed service tax provisions for airport services, port services, road transport services, and rail transport services, but not for bus terminal services. Thus, bus terminal services are out of the ambit of service tax. The judgment references, "As on date such provisions have not been created with respect to Bus terminal services and Rail services."

3. Public Utility Services and Business Support Services:
The court concluded that bus stands are created as public utility services and not as support services for private bus operators. Therefore, service tax is not applicable under business support services. The judgment states, "Bus stands are created as a public utility service and not as business support services for private bus operators."

4. Nature of Stand Fees as Parking Fees:
Stand fees are considered as stand-alone charges collected for enhancing revenue without rendering any specific services. These fees are likened to parking fees, which are exempt under renting of immovable property services. The judgment notes, "At the most these stand fees are in the nature of parking fees which are again exempt under renting of immovable property services."

5. Applicability of Interest under Section 75:
Since the service itself is not taxable, charging interest under Section 75 is not sustainable. The judgment states, "Charging of interest under the provisions of Section 75 of the Act is not sustainable since service tax itself is not payable."

6. Relief under Section 80 from Penalties:
The appellants are entitled to relief under Section 80 from penalties levied under Section 77. The court found that there was a bona fide belief that the activities undertaken by KTC were not liable to service tax, thus penalties under Sections 76, 77, and 78 could not be imposed. The judgment references, "Section 80 of the Act provides that no penalty shall be imposed on the assessee for any failure referred to in Sections 76, 77 or 78 of the Act, if the assessee proves that there was reasonable cause for the said failure."

Conclusion:
The impugned order was set aside, and the appeal was allowed. The judgment concluded that the stand fees collected by KTC are not subject to service tax as they are a statutory levy for revenue enhancement and maintenance of bus stands, not for any specific service rendered. The judgment states, "Therefore, no service tax is payable for the stand fees collected by the appellant."

← Previous Next →