2007 (2) TMI 85 - AT - Service Tax

Demand and penalty (service tax) Alleged that appellant activity is covered under two services C&F Agent and Real State Agent and liable to pay service tax and accordingly demand were made alongwith penalty Held that demand and penalty not sustainable

Summary

Issues:

1. Demand of service tax on clearing and forwarding agent services and penalty imposition.
2. Demand of service tax on real estate agent services.

Analysis:

Issue 1: Demand of service tax on clearing and forwarding agent services and penalty imposition:

The appellant, a clearing and forwarding agent, was held liable to discharge service tax on this service. The contention that the appellant was merely a commission agent and did not render services related to clearing and forwarding of goods was dismissed. The Commissioner considered the services provided by the appellant, such as attending tenders and procurement of orders, falling under the category of clearing and forwarding agent services. However, the appellant argued that a Larger Bench decision overruled the previous Division Bench decision regarding this issue. The appellant also highlighted that relief was granted by the Commissioner (Appeals) based on the Larger Bench decision. The Departmental Representative (DR) pointed out that the appellant's contract with a party involved the arrangement and execution of orders, which could include handling of goods. The appellant's argument that it did not disclose the nature of services rendered in good faith was rejected, leading to the imposition of a penalty.

Issue 2: Demand of service tax on real estate agent services:

Regarding the demand of service tax on real estate agent services, the appellant contended that it only took commissions by obtaining contracts and did not function as a real estate agent in activities like sale, purchase, or hiring. However, the impugned order held that the appellant provided services related to maintenance of real estate, categorizing it as a real estate agent. The Tribunal found that no services like purchase or hiring of real estate were rendered, concluding that the demand for service tax as a real estate agent was erroneous.

Extended Period of Payment and Penalty Imposition:

The question of whether the extended period of payment was justified was raised. The appellant believed in good faith that its services did not attract tax, a belief upheld by the Larger Bench of the Tribunal. As the services mentioned in the contracts did not fall under the category of clearing and forwarding services, the extended period for payment was deemed unjustified. It was established that in the absence of a tax demand, no penalty would be imposed. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief to the appellant.