2005 (6) TMI 6 - AT - Service Tax

Summary

Issues Involved:
1. Dispute over service tax confirmation and penalty in appeals filed by the assessee.
2. Contestation of liability to pay service tax as a dealer agent under the category of clearing and forwarding agent.
3. Legal justifiability of the contention regarding liability for service tax based on the case law precedent.
4. Imposition and enhancement of penalty under Section 76 of the service tax.

Analysis:

1. The appeals were filed against a common order-in-appeal, with Appeal Nos. 184 & 185 by the assessee disputing the confirmation of service tax with penalty, and Appeal Nos. ST-5 & 6 by the Revenue seeking enhancement of penalty. The Appellate Tribunal heard both sides and reviewed the records. The liability to pay service tax as a consignment agent was acknowledged by the assessee, leading to the upholding of the impugned order confirming the service tax on that count.

2. The dispute arose regarding the liability to pay service tax as a dealer agent under the category of clearing and forwarding agent. The Appellants contested this liability, citing a legal justification based on a decision in the case of Raja Rajeshwari Intl. Polymers (P) Ltd. v. CCE, Bangalore-III. The Tribunal found merit in the Appellants' contention, as supported by the case law precedent, and set aside the confirmation of service tax on this count.

3. The Tribunal considered the legal position that a dealer agent falls within the purview of clearing and forwarding operations, especially when goods are not directly or indirectly handled by them. The decision in the cited case law emphasized that no service tax is payable on the commission received by a dealer agent on account of Del Credere Agency. The Tribunal aligned with this legal interpretation, as also observed by the learned Commissioner (Appeals) in the impugned order, leading to the setting aside of the service tax confirmation on this aspect.

4. In terms of penalty imposition, the Tribunal noted that when the tax had been paid prior to the issuance of the show cause notice, the penalty under Section 76 of the service tax was not justified. Consequently, the penalty imposed on the Appellants was set aside, and the impugned order was modified accordingly. The appeals filed by the assessee were disposed of as per the above terms, while the Revenue's appeal for enhancement of penalty was dismissed.

This comprehensive analysis highlights the key legal aspects and decisions made by the Appellate Tribunal in the judgment, addressing the various issues raised in the appeals related to service tax confirmation and penalty imposition.