2014 (1) TMI 144 - AT - Service Tax

Demand of Service tax - Exemption availed on inter-State sales - Differential amount treated as charges for rendering Business Auxiliary Services - Held that - Prima facie it is a case of sale by Eastern India Company to the appellant who in turn sold the goods to their parent company. Therefore, question of levying Service tax on this transaction under the Business Auxiliary Service treating the profit made as consideration for services does not arise - Stay granted.

Summary

Issues involved:
Interpretation of tax liability on in-transit sales; applicability of Service tax on profit from transactions; waiver of pre-deposit and stay of recovery.

Analysis:

1. Tax Liability on In-Transit Sales:
The case involved the appellant, a subsidiary of a company, procuring items from a supplier and selling them to their parent company through in-transit sales. The supplier availed exemption on inter-State sales, and the appellant profited from the difference in rates. The issue was whether this profit should be considered as charges for rendering "Business Auxiliary Services" and thus be subjected to Service tax. The advocate argued that the transactions were within the purview of the Central Sales Tax Act, and treating the profit as service charges was unwarranted.

2. Applicability of Service Tax:
The Commissioner (Appeals) and the Additional Commissioner supported the demand for Service tax on the profit made by the appellant in the in-transit sales. However, the Tribunal disagreed, stating that the transactions were essentially sales from the supplier to the appellant and then to the parent company. Therefore, the Tribunal held that levying Service tax on the profit as consideration for services was not justified.

3. Waiver of Pre-Deposit and Stay of Recovery:
Considering the above analysis, the Tribunal ordered a waiver of the pre-deposit of dues as per the impugned order and stayed the recovery of the demanded amount until the appeal was disposed of. This decision was based on the understanding that the demand for Service tax on the profit from the in-transit sales was not sustainable.

In conclusion, the Tribunal ruled in favor of the appellant, holding that the profit from the in-transit sales should not be treated as charges for rendering Business Auxiliary Services and, therefore, the demand for Service tax was not justified. The waiver of pre-deposit and stay of recovery were granted pending the appeal's disposal.