2016 (1) TMI 597 - AT - Service Tax

Demand of service tax on Business Auxiliary services - small scale benefit under Notification No. 6/2005-ST - use of brand name of others i.e Tata Teleservices - Held that - service has been provided by the appellant to Tata Teleservices and therefore it cannot be said that it provided service to Tata Teleservices in the latter s brand name. Thus the denial of small scale exemption benefit to the appellant is unsustainable. As regards the incentive received for achieving the targets, it is; not excludible from the assessable value of the service which as per Section 67 is the gross amount received for the service rendered and it cannot be sustainably argued that such incentive would not constitute part of the gross amount recovered as the incentive was with regard to achieving the target for rendering BAS only. While granted SSI exemption, the issue of valuation decided against the assessee, penalty reduced - Decided partly in favor of assessee.

Summary

Issues:
- Appeal against service tax demand, interest, and penalties imposed under Sections 77 and 78 of the Finance Act, 1994.
- Contention regarding small scale exemption benefit.
- Dispute over providing Business Auxiliary Service to a specific entity.
- Inclusion of incentive received in the assessable value.
- Imposition of penalty under Section 78 without offering the option of reduced penalty.
- Discrepancy in penalty amount compared to the confirmed demand.

Analysis:
The appeal was filed challenging the order-in-original confirming a service tax demand of Rs. 58105/- along with interest and penalties under Sections 77 and 78 of the Finance Act, 1994. The appellant raised several contentions, including the denial of the small scale exemption benefit, the nature of services provided to a particular entity, and the inclusion of an incentive received in the assessable value. The Revenue argued that the appellant charged service tax but did not deposit it, and the services provided were in the brand name of another entity, thus ineligible for the small scale exemption.

Upon examination, it was found that the demand was confirmed under Section 73 of the Finance Act, 1994, and not Section 73A. The appellant's agreement with the entity indicated activities falling under Business Auxiliary Service, despite being termed a "franchisee" agreement. The appellant was deemed to have provided taxable services to the entity. The denial of the small scale exemption benefit was deemed unsustainable as the services were provided to the entity, not in its brand name. The incentive received was held includible in the assessable value, as it related to achieving targets for rendering the service.

Regarding penalties, it was noted that the penalty under Section 78 was imposed without offering the option of reduced penalty, as per a previous court ruling. Additionally, the penalty amount was deemed excessive compared to the confirmed demand. The appeal was partially allowed, reducing the demand and penalties to Rs. 9145/- each. The penalty under Section 78 could be further reduced to 25% of Rs. 9145/- if paid within 30 days of the order receipt.