2016 (10) TMI 876 - AT - Service Tax

Business Auxiliary Services (BAS)- operator of COCO Retail outlets - whether contract with BPCL would fall under the category of BAS? - Held that - reliance placed in the decision of Sajjid Ahmad and others V/s. Commissioner of C.CE & ST 2013 (11) TMI 1305 - CESTAT BANGALORE where it was held that The amounts received by ways of reimbursement from HPCL needs to be reduced from the gross value of taxable service. Thus, lit us desirable in the interest of justice to remand the matter for correct determination of tax liability of the appellants. As the appellant has not filed a reply to the show-cause notice, we are of the considered opinion that the present appeal also requires to be likewise remanded for denovo consideration - appeal allowed - matter remanded.

Summary

Issues:
Challenge to demand of service tax under Business Auxiliary Service category, interest, and penalties.

Analysis:
The appeal was filed challenging the demand of service tax amounting to ?7,45,744 under the category of Business Auxiliary Service, along with interest and penalties. The appellant, an operator of COCO Retail outlets of a petroleum company, was alleged to have not discharged the service tax liability on services provided to the petroleum company. The adjudicating authority confirmed the demand, interest, and penalties. In the appeal, the Commissioner modified the order to allow the appellant the benefit of cum-tax subject to document verification. The appellant did not file a reply to the show-cause notice, but contended that the activities did not fall under BAS, involving security, quality checks, housekeeping, and other tasks. The Tribunal noted a similar case where deductions were allowed for specific reimbursable expenses. As the appellant did not respond to the notice, the Tribunal remanded the case for reconsideration on whether the activities fell under BAS, re-determination of taxable value after expense deductions, and consideration of cum-tax benefit as per the Commissioner's order.

The Tribunal observed that a prima facie case favored the appellants based on deductions allowed for reimbursable expenses in a similar case. Therefore, the matter was remanded for a correct determination of tax liability. The Tribunal held that various reimbursements received by the appellants needed to be deducted from the gross value of taxable service. The appeal was allowed by way of remand, and the stay application was disposed of accordingly. The Tribunal emphasized the need for a denovo consideration of the points related to the nature of activities, deduction of reimbursable expenses, and the cum-tax benefit as per the Commissioner's order. The decision was pronounced in court at the conclusion of the hearing.