2009 (5) TMI 110 - AT - Service Tax

Service of business auxiliary - activity of sale of lottery tickets - application of explanation inserted to sub-clause (ii) of section 65 (19) of the Finance Act 1994 - the submission of the revenue is that the explanation should be read as a Legislation with retrospective effect. Contrary is the view of the appellant. - We have already stated yesterday that there is no intendment about tax nor there is equity. The subject of state should be brought to the ambit of the tax by express provision of law. - Therefore the matter needs thorough examination on the touch stone of the law. stay is granted

Summary

Issues:
1. Service tax demand and education CESS imposition on lottery activity.
2. Interpretation of business auxiliary service under section 65(19) of the Finance Act 1994.
3. Retrospective application of the explanation to section 65(19)(ii) of the Finance Act 1994.

Analysis:

Issue 1 - Service tax demand and education CESS imposition on lottery activity:
The case involved a service tax demand of Rs. 19,09,26,997/- and education CESS of Rs. 14,75,112/- on lottery activity conducted for the State of Meghalaya. The appellant argued that the lottery activity was conducted under agreements with the State, where the proceeds belonged to the State, and the appellant's role was limited to marketing and supporting the lottery. The revenue contended that the appellant's activities fell under the category of business auxiliary service, as they supported the State in marketing lottery tickets. The Tribunal considered the arguments from both sides and noted the complexity of the matter.

Issue 2 - Interpretation of business auxiliary service under section 65(19) of the Finance Act 1994:
The Revenue argued that the appellant's role in supporting the State in marketing lottery tickets qualified as a business auxiliary service under clause (19) of section 65 of the Finance Act 1994. They emphasized that the State controlled the lotteries, and the proceeds belonged to the State, while the appellant received a fixed sum as remuneration. The Tribunal examined the relevant documents and the nature of the appellant's activities to determine whether they indeed fell under the business auxiliary service category.

Issue 3 - Retrospective application of the explanation to section 65(19)(ii) of the Finance Act 1994:
A critical aspect of the case was the retrospective application of the explanation inserted to sub-clause (ii) of section 65(19) of the Finance Act 1994. The Revenue argued for a retrospective reading of the explanation, while the appellant disagreed. The Tribunal acknowledged the significance of this explanation in determining the tax liability amounting to Rs. 19,24,02,109/-. They deliberated on the retrospective or prospective nature of the explanation and its implications on the appellant's rights. The Tribunal expressed the need for a thorough examination of the matter in light of the legislative intent and the impact on the appellant's rights.

In conclusion, the Tribunal decided to waive the pre-deposit during the pendency of the appeal, considering the complexity and gravity of the issues involved. They granted liberty to both parties to apply for early hearing and suggested listing the appeal for analogous hearing with another case for a logical conclusion. The judgment emphasized the need for a detailed examination of the legal provisions and implications before reaching a final decision on the tax liability related to the lottery activity.