2009 (5) TMI 115 - AT - Service Tax

The appellant after bidding entered into a contract with the National Highway Authority of India for collection of highway toll fee. In terms of the contract, periodically the appellant had to make payments to the National High way Authority - From the total amount collected after subtracting the amount to be paid to the National Highway Authority, the balance amount will be retained by the appellant as his profit. Revenues proceeded against the appellant on the ground that he is rendering business auxiliary services as commission agent. - Several legal issues are involved in this matter. They can be gone through in depth only at the time of final hearing. Presently we are not able to give any opinion on merits. stay granted partly

Issues:
1. Whether the appellant is required to pre-deposit specific sums related to service tax, education cess, penalty under the Finance Act, interest, and various other penalties.
2. Whether the appellant, engaged in a contract with the National Highway Authority of India for toll fee collection, can be considered a commission agent and liable for business auxiliary services.
3. Whether the appellant's legal contentions against being labeled a commission agent are valid.
4. Whether the impugned order justifying the appellant as a commission agent is legally sound and warrants a pre-deposit for stay of recovery pending appeal.

Analysis:
1. The Tribunal, consisting of Members T.K. Jayaraman and M.V. Ravindran, addressed the issue of pre-deposit amounts totaling Rs. 59,97,018/- for service tax, Rs. 1,19,940/- for education cess, Rs. 61,16,958/- as penalty under section 78 of the Finance Act, 1994, along with interest, daily penalties, and an additional penalty of Rs. 1000/- under section 77 of the Finance Act, 1994. A pre-deposit of Rs. 2,00,000/- was ordered for stay of recovery pending appeal, with compliance due by a specified date.

2. The appellant's contractual arrangement with the National Highway Authority of India for toll fee collection was scrutinized to determine whether the appellant's role as a commission agent rendered them liable for business auxiliary services. The Commissioner's assessment categorized the appellant as a commission agent, triggering the demand for duties, which the appellant's advocate vehemently contested, arguing against the label and the inclusion of amounts paid to the National Highways Authority in the duty calculation.

3. The appellant's legal contentions challenging the characterization as a commission agent were presented by their advocate, who asserted that the appellant does not provide any service and disputed the inclusion of payments to the National Highway Authority in the duty calculation. The advocate's arguments aimed to refute the notion that the appellant falls under the definition of a commission agent, raising doubts about the correctness of the duty demand.

4. While acknowledging the legal complexity and the need for a thorough examination of the issues during the final hearing, the Tribunal refrained from expressing a definitive opinion on the merits at the interim stage. The Tribunal, however, noted that the impugned order provided justifications for considering the appellant as a commission agent. The order required the specified pre-deposit for stay of recovery pending appeal, with a deadline for compliance and a subsequent reporting date for confirmation of compliance.

This detailed analysis encapsulates the key legal issues, arguments, and the Tribunal's decision regarding the pre-deposit and the appellant's classification as a commission agent, providing a comprehensive overview of the judgment delivered by the Appellate Tribunal CESTAT, Bangalore.

← Previous Next →