2008 (9) TMI 82 - AT - Service Tax

Process of filing the Appeal as well as dispatch of the same by speed post has been completed on 08.05.2007 before the amendment to Section 86 (2A) appeal is entertainable though section was amended only w.e.f. 11.5.07 which require authorization by Committee activity of processing loan paper and recommending to bank to sanction or not, is a Business Auxiliary Service and not a Franchise Service

Summary

Issues:
1. Authorization for filing appeal under Section 86(2A) of the Finance Act, 1994.
2. Classification of services provided to M/s. ICICI Bank under 'business auxiliary service'.
3. Interpretation of the changed definition of 'franchise' under the Service Tax Law.
4. Claim for deductions from gross receipts for expenses incurred.
5. Imposition of penalty by the original Authority.

Analysis:

1. The first issue revolves around the authorization for filing an appeal under Section 86(2A) of the Finance Act, 1994. The Respondent raised a preliminary objection citing the amendment to the Act, requiring authorization only from a Committee of Commissioners for filing an appeal. However, the Tribunal found that the appeal process, including dispatch, was completed before the amendment, thereby making the appeal maintainable despite a postal delay.

2. The second issue concerns the classification of services provided to M/s. ICICI Bank under 'business auxiliary service'. The Tribunal had previously ruled that these services fell under this category. The Respondent argued that a change in the definition of 'franchise' required reconsideration for a subsequent period. However, the Tribunal reaffirmed that the services rendered by the Respondents constituted 'business auxiliary service' as they were not marketing M/s. ICICI's product directly.

3. The third issue delves into the interpretation of the changed definition of 'franchise' under the Service Tax Law. Despite the alteration in the definition, the Tribunal maintained that the Respondents' services qualified as 'business auxiliary service' as they were not authorized to market M/s. ICICI's loans directly, with M/s. ICICI retaining the final decision-making authority.

4. The fourth issue involves the Respondents' claim for deductions from gross receipts for expenses incurred. The Tribunal ruled that since the Service Tax calculation is based on gross receipts and the Respondents were paid for providing services, no deductions for expenses were permissible, as the entire amount received was attributed to 'business auxiliary service'.

5. The final issue pertains to the imposition of a penalty by the original Authority. The Tribunal decided that since the Respondents provided accurate information without the intent to evade Service Tax, the penalty was unwarranted. Consequently, the penalties imposed on the Respondents were waived, and the impugned Order-in-Appeal was set aside, with the Department's appeal allowed in the specified terms.