2012 (2) TMI 319 - AT - Service Tax

Waiver of pre-deposit - Sale of Naphtha and furnace oil on high sea basis - Additional handling charges and facilitation charges liable to tax under Business Auxiliary Services - Held That - These charges are to be included in assessable value therefore, they are not liable for service tax. Waiver granted.

Summary

Issues:
1. Whether services rendered during the sale of goods on High Seas Sale basis are liable to Service Tax under the category of 'Business Auxiliary Service'?
2. Whether facilitation charges and additional handling charges included in the assessable value are liable for service tax?

Analysis:
*Issue 1:*
The appellant, M/s Indian Oil Corporation Ltd., sought waiver of pre-deposit of a substantial amount under the Finance Act, 1994, related to service tax demands confirmed by the department. The dispute arose from a sale agreement with M/s Zuari Industries Ltd. for naphtha and Furnace oil on High Seas Sale basis. The department contended that charges for additional handling and facilitation services rendered during the sale were liable to Service Tax under 'Business Auxiliary Service'. The appellant argued that the transaction was a principal-to-principal sale, citing legal precedents like Tata Power Co. Ltd. vs. Commissioner of Customs, Mangalore and Pratap Singh & Sons vs. Commissioner of Central Excise, Mumbai-I to support their case. The Tribunal found that the charges were included in the assessable value, making them not liable for service tax.

*Issue 2:*
The Tribunal considered whether facilitation charges and additional handling charges included in the assessable value were subject to service tax. The department argued that these charges constituted services rendered by the appellant to the buyer, making them taxable. Legal precedents such as Madras Hire Purchase Association vs. Union of India and Association of Leasing and Financial Service Companies vs. Union of India were cited. However, after analyzing the agreement for sale and the nature of charges included in the assessable value, the Tribunal concluded that the charges were not liable for service tax. Consequently, the Tribunal waived the requirement of pre-deposit and stayed the demand during the appeal process.

Overall, the Tribunal's decision favored the appellant, holding that the charges included in the assessable value were not subject to service tax, based on the specific nature of the transaction and legal interpretations of relevant precedents.