2017 (3) TMI 1153 - AT - Service Tax

Classification of services - BAS or C&F - sale of cement by working under the cover of purchase invoices - classified under Business Auxiliary Service - demand raised by Revenue by classifying the service under clearing and forwarding agent service u/s 73(1) of the FA 1994 - Held that - Whatever distribution is made by the appellant for that the collective responsibility lies with the appellant. But facts remains that when the principal has taken a responsibility for safe custody transportation damage demurrage rent and theft of the cement then certainly the substantial ownership lies with the principal. When it is so then we find no reason to interfere with the impugned order where the demand is rightly raised u/s 73(1) of the FA 1994 - appeal dismissed - decided against appellant.

Summary

Issues:
1. Classification of appellant's business activity under "Business Auxiliary Service" or as a "Clearing and Forwarding Agent"
2. Interpretation of the letter from the principal M/s Maihar Cement Limited
3. Assessment of ownership of goods and responsibility for theft, damage, and other related issues

Analysis:
1. The primary issue in this case revolves around the classification of the appellant's business activity. The appellant claimed to be engaged in the sale of cement under the cover of purchase invoices, paying service tax under "Business Auxiliary Service." However, the department contended that the appellant was functioning as a "clearing and forwarding" agent of the principal, demanding service tax under Section 73(1) of the Finance Act, 1994. The appellant challenged this classification, leading to the present appeal.

2. A significant aspect of the case involved the interpretation of a letter from the principal M/s Maihar Cement Limited. The appellant's advocate highlighted the letter, dated 24.06.2008, clarifying that the term "C & F Agent" could be understood as "Handling job," indicating the appellant's role as a sales promoter. The letter stated that the appellant was involved in handling their purchased cement and that of other sales promoters for the principal. However, it was noted that this clarification came after the issuance of a show cause notice in 2009. The advocate argued that the appellant's business activity was assessed by Commercial Tax Authorities, recognizing them as a purchaser and seller of cement, falling under "Business Auxiliary Service."

3. The final issue addressed in the judgment pertained to the assessment of ownership of goods and related responsibilities. The tribunal considered that the principal, M/s Maihar Cement Limited, had assumed responsibility for theft, godown rent, damage, demurrage, and safe transport of the goods. This led to the conclusion that the ownership of the goods primarily rested with the principal. As the principal took on various responsibilities related to the goods, the tribunal found no grounds to interfere with the impugned order demanding service tax under Section 73(1) of the Finance Act, 1994. Consequently, the tribunal upheld the impugned order, dismissing the appellant's appeal.

In conclusion, the judgment delves into the classification of the appellant's business activity, the interpretation of crucial correspondence, and the assessment of ownership and responsibilities regarding the goods involved. The decision ultimately favored the revenue's position, emphasizing the principal's ownership and responsibilities as key factors in determining the appellant's tax liabilities.