2009 (1) TMI 189 - AT - Service Tax

ROM Rectification of Mistake Appellant filed an application to rectify the order in view of apex court decision - The question as to what is the main activity of the assessees and what is their incidental activity is something which has not been established by the assessees before the Tribunal. Therefore the applicability of the apex court s decision is highly debatable and it cannot be applied to the facts of the present case. In the circumstances no error arises in holding that the applicants are liable to service tax. As regards the second plea nowhere it is reflected in the order of the Tribunal that the assessees had argued against imposition of penalty and therefore no error arises on this score also. Application for ROM rejected.

Issues: Liability of service tax and penalty for procuring purchase orders and undertaking clearing and forwarding operations; Applicability of apex court's decision on liability; Setting aside penalty under amnesty scheme.

Analysis:
1. Liability of Service Tax and Penalty: The Tribunal, in Final Order Nos. 332-333/08, upheld the liability of service tax and penalty against the applicants for procuring purchase orders and undertaking clearing and forwarding operations. The Tribunal based its decision on the interpretation that such activities fall under the definition of "Clearing and Forwarding Agent," attracting service tax. The applicants contested this decision, arguing that their main activity was procuring purchase orders for the principal on a commission basis, and the clearing and forwarding operations were incidental. They relied on the Apex Court's decision in Super Poly Fabriks Ltd. v. Commissioner of Central Excise, Punjab to support their case. However, the Tribunal found no error in holding the applicants liable for service tax as the main and incidental activities were not clearly established before the Tribunal.

2. Applicability of Apex Court's Decision: The applicants contended that the Tribunal erred in not considering the Apex Court's decision and its relevance to their case. They argued that the decision in Super Poly Fabriks Ltd. v. Commissioner of Central Excise, Punjab supported their position and should have been applied to their situation. However, the Tribunal deemed the applicability of the Apex Court's decision debatable in this case due to the lack of clarity on the main and incidental activities of the assessees. Therefore, the Tribunal concluded that no error existed in holding the applicants liable for service tax.

3. Setting Aside Penalty under Amnesty Scheme: The applicants further submitted that the penalty imposed on them should have been set aside under the amnesty scheme announced by the Government. However, the Tribunal noted that this plea was not raised during the course of the hearing, as it was not reflected in the order that the applicants had argued against the imposition of the penalty. Consequently, the Tribunal found no error in not considering the plea to set aside the penalty under the amnesty scheme.

4. Final Decision: After considering the arguments from both sides, the Tribunal dismissed the application, stating that there was no merit in the contentions raised by the applicants. The Tribunal found no error in holding the applicants liable for service tax and penalty, as the main activity of the assessees and the applicability of the Apex Court's decision were not sufficiently established. The plea to set aside the penalty under the amnesty scheme was also rejected due to its non-consideration during the hearing.

← Previous Next →