2019 (9) TMI 1585 - AT - Service Tax

Levy of service tax - Business auxiliary services or not - commission earned while disbursing loan - activity is commercial in nature or not - HELD THAT - This Tribunal has already decided the issue on merits against the appellant in NATIONAL CO-OPERATIVE DEVELOPMENT CORPORATION VERSUS COMMISSIONER OF SERVICE TAX, DELHI 2018 (3) TMI 707 - CESTAT NEW DELHI where it was held that there is no case for excluding income of appellant as commission in disbursing loan, from tax liability under BAS. The demand is upheld - appeal dismissed - decided against appellant.

Summary

Issues:
1. Whether the appellant, a National Cooperative Development Corporation, is liable to pay service tax on commission earned for disbursing loans under "business auxiliary services" as per Section 65(19) of the Finance Act, 1994.
2. Whether the appellant's activities, mandated by the Government for the welfare of the sugar industry, can be considered commercial services subject to service tax.

Analysis:

Issue 1:
The impugned Order-in-Original confirmed a demand of service tax against the appellant for earning commission on disbursing loans. The adjudicating authority held that the commission earned falls under "business auxiliary services" as per Section 65(19) of the Finance Act, 1994. However, no penalties were imposed due to a reasonable cause for the delay in paying the service tax.

Issue 2:
The appellant argued that being created by an Act of Parliament for discharging statutory functions, it should not be liable for service tax. The activities were mandated by the Government for the welfare of the sugar industry and should not be considered commercial services. The appellant acted as an agent to the Government, and the Government was not engaged in business in this arrangement.

The Authorized Representative contended that while the loans were disbursed in line with Government policy, they were governed by the statutory provisions of the Finance Act, 1994. The commission earned was not a statutory levy but a commercial activity covered under Business Auxiliary Service. Previous demands against the appellant on the same issue were upheld by the Tribunal, indicating the commercial nature of the activity.

The Tribunal referred to a previous Final Order which upheld the tax liability of the appellant, stating that the loans disbursed to commercial enterprises for business purposes and the commission earned were not exempt from tax liability. The appellant's independence for commercial activity, despite being mandated by Government policy, did not absolve them from tax liability.

In conclusion, the Tribunal dismissed the appeal, citing a previous decision against the appellant and upholding the impugned Order-in-Original without interference.