2009 (5) TMI 49 - AT - Service Tax

Business Auxiliary Service Selling of tea at a price fixed by the principal SCN issued raise a demand under the category of Clearing & Forwarding Agent , which includes a Consignment Agent Held that conflicting views had been taken by the Tribunal on the issue of taxability of consignment agent as clearing and forwarding agent. It is well settled that when different views are prevalent about the applicability of a tax, extended period is not available to the revenue for the purposes of raising demands demand set aside.

Summary

Issues:
1. Classification of services provided by the appellant as a commission agent or a clearing and forwarding agent.
2. Applicability of tax demand and penalties for the period October 2000 to March 2005.
3. Invocation of extended period of limitation for tax demand.
4. Procedural failure by the appellant in submitting returns and observing procedures.

Analysis:

Issue 1: Classification of services
The appellant argued that they acted as a commission agent selling tea on behalf of their principals, emphasizing that unloading and storing goods were incidental to their role. They relied on agreements with principals and legal precedents to support their position. The Revenue contended that the appellant's activities aligned more with a consignment agent, citing statements and circulars. The Tribunal considered conflicting decisions and ruled in favor of the appellant, stating that the demand of tax and penalty was not applicable as the activities were more in line with a commission agent rather than a clearing and forwarding agent.

Issue 2: Tax demand and penalties
The appellant contested the tax demand, arguing that there was no intent to evade payment of tax and that the demand for the extended period was not sustainable based on legal precedents. The Revenue reiterated the findings of the Commissioner (Appeals) and highlighted the procedural aspects of the case. The Tribunal found that the demand of tax for the period October 2000 to March 2005 was barred by limitation due to conflicting decisions and the appellant's bona fide belief that they were not liable to pay the tax.

Issue 3: Extended period of limitation
The Revenue argued that the appellant's failure to submit returns and observe procedures indicated suppression of facts with intent to evade payment of tax, justifying the invocation of the extended period of limitation. However, the Tribunal disagreed, stating that the conflicting decisions on tax liability and the appellant's bona fide belief led to procedural failures, and thus, the demand of tax was barred by limitation.

Issue 4: Procedural failure
The Tribunal found that the procedural failure on the part of the appellant was due to a bona fide belief that they were not liable to pay the tax. As a result, the demand of tax was considered barred by limitation, leading to the setting aside of the impugned order without delving into the merits of the case. The appeal was allowed with consequential relief, emphasizing the importance of the appellant's belief in determining procedural failures.

This detailed analysis of the judgment showcases the legal arguments, precedents, and considerations that led to the Tribunal's decision on each issue involved in the case.