2014 (1) TMI 307 - AT - Service Tax

Stay application - Waiver of pre deposit - Receipt of facilitation fee, i.e. commission from various shops and emporia for providing services of promoting or marketing or selling of goods provided or belonging to the emporia/shops is liable to Service Tax under the category of Business Auxiliary Service in terms of clause 19(i) of Section 65 of Finance Act, 1994 - Held that - Prima facie, the activity of the appellant is covered by the definition of Business Auxiliary Service . As such it is not the case for complete waiver of pre-deposit. However, taking into account the appellant s contention that the demand is barred by limitation and considering that the issue involved is of bona fide interpretation, we deem it fit to direct the appellant to deposit an amount of pre deposit - Partial stay granted.

Summary

Issues:
1. Whether the appellant's facilitation fee is liable to Service Tax under 'Business Auxiliary Service' category.
2. Whether the demand for Service Tax is within the limitation period.

Analysis:

Issue 1:
The appellant, a Govt. company promoting tourism, charged a facilitation fee for stopping trains at shops to facilitate passengers for shopping. The Revenue argued that this fee falls under 'Business Auxiliary Service' as it promotes the marketing of shops. The appellant contended that their activity is not 'Business Auxiliary Service' but promotion of tourism. The Tribunal found the issue contentious. While acknowledging the Revenue's argument, the Tribunal considered the appellant's limitation defense and the bona fide interpretation involved. Consequently, the Tribunal directed the appellant to deposit Rs. 10 lakhs within six weeks, within the limitation period, and waived the pre-deposit of the remaining amount, penalty, and interest during the appeal's pendency.

Issue 2:
The Revenue initiated proceedings against the appellant for Service Tax demand on facilitation fees received. The appellant challenged the demand on the grounds of limitation. The Tribunal noted the appellant's argument on limitation and the contentious nature of the issue. Considering the appellant's contention and the bona fide interpretation involved, the Tribunal directed a partial deposit within the limitation period and stayed the recovery of the remaining amount, penalty, and interest during the appeal.

This judgment highlights the importance of considering both parties' arguments, the nature of the activity in question, and the limitation period in tax disputes. The Tribunal's decision to direct a partial deposit within the limitation period showcases a balanced approach to resolving contentious tax issues.