2013 (2) TMI 186 - AT - Service Tax

Waiver of Pre-deposit - Business Auxiliary Service - Activity of procuring milk and milk products and selling it at a price fixed by the supplier - Held that - The appellants are not at liberty to sell the milk at a higher rate or lower rate. In that case, the appellants are an agent of the supplier. Therefore, they are covered under the Business Auxiliary Service . Accordingly, they failed to make out a case for hundred percent waiver of pre-deposit. Direct the applicant to make a predeposit of 50% of the service tax confirmed. Partly allowed

Summary

Issues:
Service tax demand confirmation for the period April 2004 to March 2008 under "Business Auxiliary Service" category for procuring and selling milk products at a fixed price by the supplier.

Analysis:
The judgment addressed the service tax demand confirmation of Rs.50,82,399/- for the period April 2004 to March 2008 against the applicants under the category of "Business Auxiliary Service" for procuring milk and milk products and selling them at a price fixed by the supplier. The contention of the applicants was that they operate on a principal to principal basis, retaining their profit without receiving any commission for selling goods supplied by the society. However, the Tribunal observed that the price of milk was fixed by the supplier, indicating that the appellants were acting as agents of the supplier rather than operating independently. This led to the conclusion that they fell under the purview of "Business Auxiliary Service."

The Tribunal emphasized that since the appellants were not free to sell the milk at a rate of their choosing, they were deemed to be agents of the supplier. Consequently, the Tribunal directed the applicants to make a predeposit of 50% of the confirmed service tax amount within 8 weeks, with compliance to be reported by a specified date. Upon such deposit, the balance of service tax, interest, and penalties would remain stayed during the pendency of the appeal process. This decision was based on the finding that the appellants failed to establish a case for a full waiver of predeposit, given the nature of their relationship with the supplier and the fixed pricing arrangement for the milk products.

In conclusion, the judgment highlighted the importance of the pricing mechanism in determining the nature of the relationship between the parties involved in the sale of goods. By establishing that the appellants were constrained by the supplier's fixed prices, the Tribunal classified them as agents under the "Business Auxiliary Service" category, leading to the directive for partial predeposit of the confirmed service tax amount.