2017 (9) TMI 233 - AT - Service Tax

Business Auxiliary services - discount (commission) - 1% additional discount is over and above the normal trade discount - whether trade discount of conditional discount? - demand of tax on discount amount - Held that - subject 1% additional discount pertains to Business Auxiliary Services being provided by the appellant to M/s. HP - Here, the appellant is providing Reseller Sell-Through Reports and Inventory Reports on weekly basis in specified format to M/s. HP and if the appellant does not provide such reports, they will not get said 1% discount from M/s. HP. These specified format reports which are furnished on weekly basis are inputs from the appellant for promotion of the business of sales of the goods belonging to M/s. HP. Therefore, the claim of the appellant that said 1% commission is under the category of normal trade discount, cannot be accepted - appeal dismissed - decided against appellant.

Summary

Issues:
Appeal against service tax demand on additional commission received by appellant from a company; Determination of agency relationship between the appellant and the company; Classification of the activity as "Business Auxiliary Services"; Interpretation of relevant clauses in the agreement; Application of the definition of Business Auxiliary Services under the Finance Act, 1994.

Analysis:

The appellant, a distributor of a company's products, appealed against a service tax demand of ?62,02,559 along with interest and penalty. The issue revolved around the additional 1% discount received by the appellant from the company, which the department considered as commission income disguised as a trade discount. The department issued a show cause notice to the appellant, alleging tax evasion. The appellant contended that there was no agency relationship with the company, and the activity involved was merely providing weekly reports, not related to promotion or marketing. The appellant argued that the amount received was a discount and not a consideration for services provided.

The Tribunal analyzed the terms of the agreement between the appellant and the company, which specified that the 1% discount was for providing specific reports on a weekly basis. The Tribunal referred to the definition of Business Auxiliary Services under the Finance Act, which includes services related to promotion, marketing, or sale of goods belonging to the client. The Tribunal concluded that the reports provided by the appellant were inputs for the promotion of the company's goods, making the 1% discount fall under the category of Business Auxiliary Services. The impugned order highlighted that the appellant's services were essential for the company's market strategy and future planning, qualifying as special tasks related to promotion and marketing.

The Tribunal dismissed the appellant's arguments, emphasizing that the 1% discount was not a trade discount but a commission for services rendered. The Tribunal upheld the impugned order, stating that the appellant's receipt of the discount was well-known, even if it was through book-adjustment in the invoices. The relationship between the appellant and the company was seen as a client-provider dynamic, where the discount was a consideration for services provided. The Tribunal found the appellant's submission untenable, holding that the discount constituted income for the appellant in exchange for providing Business Auxiliary Services to the company.

In conclusion, the Tribunal affirmed the impugned order, sustaining the demand for service tax on the additional commission received by the appellant. The appeal was dismissed for lack of merit, with the judgment pronounced on 4th August 2017.