2008 (6) TMI 61 - AT - Service Tax

On behalf of Southern Railway, Port trust undertook the activity of transporting cargo admittedly, Port Trust is acting as an agent of the Southern Railway in the matter of billing the cargo owners, collecting the cheques & depositing the same with RBI - appear to have been performed in a manner incidental or auxiliary to provision of service on behalf of the client , so taxable under Business Auxiliary Service exemption available prior to 10.9.04 u/not. 25/04 so stay is partly granted

Summary

Issues: Classification of service under Business Auxiliary Service (BAS) for service tax, applicability of clauses (vii) and (vi) of Section 65(19) of the Finance Act, 1994, exemption under Notification No. 25/2004-S.T., payment of service tax under protest, pre-deposit requirement.

Analysis:

1. Classification under Business Auxiliary Service (BAS): The case involved a dispute regarding the classification of services provided by a Port Trust to the Southern Railway under the category of BAS for the purpose of service tax. The Commissioner classified the service under clause (vii) of sub-section (19) of Section 65 of the Finance Act, demanding service tax on the gross amount collected. The appellant argued that since they did not undertake activities specified in clauses (i) to (vi), the services provided should not be considered as BAS under clause (vii). However, the respondent contended that the services rendered to the cargo owners on behalf of the Southern Railway fell under clause (vi), making the activities like billing, collection of cheques, etc., incidental to the main service. The Tribunal found that the Port Trust was acting as an agent of the Southern Railway and the activities were indeed auxiliary to the service provided, thereby making them exigible to service tax under BAS.

2. Exemption under Notification No. 25/2004-S.T.: The appellant referred to Notification No. 25/2004-S.T. dated 10-9-2004, which exempted certain business auxiliary services, including incidental/auxiliary services, from payment of service tax. The Tribunal acknowledged the exemption but clarified that the activities performed by the Port Trust on behalf of the Southern Railway were still taxable under clause (vi) of Section 65(19), and thus, the exemption did not apply in this case.

3. Payment of Service Tax Under Protest: It was noted that the Port Trust had been paying service tax in a different category (Port Services) prior to February 2004, under protest, with a pending dispute before the Tribunal. This history of payment under protest did not impact the current demand for service tax under BAS.

4. Pre-deposit Requirement: The Tribunal directed the appellant to pre-deposit a specific amount within a stipulated period, failing which the stay of recovery would not be granted. The requirement for pre-deposit was imposed as a condition for further proceedings in the case, ensuring compliance with the tax liability before addressing other aspects like interest, penalty, and the remaining service tax amount.

In conclusion, the judgment clarified the classification of services under BAS, addressed the exemption under Notification No. 25/2004-S.T., considered the history of payment under protest, and imposed a pre-deposit requirement for the appellant to proceed with the case effectively.