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2010 (1) TMI 649 - AT - Service TaxDemand - Security agency service and Business Auxiliary Services - Time barred - 100% EOU - CBEC Circular No. ST-56/5/03, dated 25-4-2003 - The appellant had merely supplied manpower for the purpose of unloading, driving and performing functions of receptionist, etc - Commissioner does not give any finding on the claim of the assessee that they were under the bona fide belief that tax was payable when it had realized the same from customers - Held that in the absence of a reliable finding of suppression or rebuttal of the assessee s claim of bona fide belief, the Commissioner could not have validly invoked longer period under Section 73(1)(a) of the Act to confirm the demand for the period 16-10-1998 to 31-3-2004 in show-cause notice issued on 6-10-2004 - assessee did not thereby undertake any service auxiliary or incidental to the services enumerated in sub-clause (i), (ii) & (iii) of Section 65(19) of the Finance Act, 1994. Therefore on merits, the demand confirmed under business auxiliary service cannot be sustained - Decided in favour of the assessee
Issues Involved:
1. Demand of service tax under "Security Agency Services" and "Business Auxiliary Services." 2. Invocation of extended period of limitation. 3. Classification of services provided under "Business Auxiliary Services." 4. Imposition of penalty and interest. 5. Applicability of amended provisions of Section 73 of the Finance Act, 1994. Detailed Analysis: Issue 1: Demand of Service Tax under "Security Agency Services" and "Business Auxiliary Services" The impugned order confirmed a demand of Rs. 79,43,346/- for "Security Agency Services" rendered from 16-10-1998 to 31-3-2004 and Rs. 20,05,224/- for "Business Auxiliary Services" rendered from 1-7-2003 to 31-3-2004. The appellants contested these demands, arguing that the larger period could not be invoked and that the services provided were not taxable under the claimed categories. Issue 2: Invocation of Extended Period of Limitation The appellants argued that the demand was time-barred and that the larger period could not be invoked. They claimed a bona fide belief that tax was payable only after collecting the same from customers. The Tribunal found that the Commissioner did not provide a finding of intent to evade tax and thus, the invocation of the extended period under Section 73(1)(a) was not justified. Issue 3: Classification of Services under "Business Auxiliary Services" The Tribunal examined whether the services provided, such as drivers, nurses, and receptionists, fell under "Business Auxiliary Services" as defined in Section 65(19) of the Finance Act, 1994. It was found that these services did not constitute auxiliary support services as defined under sub-clause (iv) of Section 65(19). The Tribunal concluded that these services were not taxable under "Business Auxiliary Services" during the relevant period. Issue 4: Imposition of Penalty and Interest The appellants argued that neither penalty nor interest was payable since the demand itself was not maintainable. The Tribunal agreed, noting that the facts and circumstances did not justify the imposition of penalties or charging of interest. The Tribunal also referenced various judicial authorities that supported the claim of a bona fide belief by the assessee. Issue 5: Applicability of Amended Provisions of Section 73 of the Finance Act, 1994 The Tribunal noted that the show-cause notice was issued under the provisions of Section 73 as they stood prior to 10-9-2004. It was argued that the demand was raised invoking provisions that had been repealed. The Tribunal cited multiple judicial authorities, including the Supreme Court's decision in M.S. Shivananda v. Karnataka State Road Transport Corporation, which supported the claim that the law applicable at the time of the show-cause notice should be invoked. The Tribunal concluded that the demand invoking obsolete provisions was not sustainable. Conclusion The Tribunal vacated the impugned order, allowing the appeal filed by M/s. The People Choice. The demand for service tax under both "Security Agency Services" and "Business Auxiliary Services" was found to be unsustainable due to the improper invocation of the extended period of limitation and incorrect classification of services. The imposition of penalties and interest was also deemed unjustified.
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