2018 (5) TMI 1234 - AT - Service Tax

Business Auxiliary Services - appellant had entered into the General Sales Agreement (GSA) dated 04/12/2013 with M/s Thai Airways International, for providing a bouquet of services related to reservation, ticketing, infrastructural support, liaising with the authorities, make sales, appoint passenger and cargo sales agents etc. - whether taxable under Business Auxiliary services or not? - Held that - In view of the fact that the period of dispute in the case of the appellant is from 01/07/2003 to 09/09/2004, which is prior to the date of amendment of the definition of business auxiliary service, the explanation inserted in such definition subsequently, cannot have the retrospective application - demand set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Interpretation of the definition of business auxiliary service prior to and after the amendment in the Finance Act, 2005.

Analysis:
The case involved an appeal against an order passed by the Commissioner of Central Excise, Gurgaon, concerning the classification of services provided under a General Sales Agreement (GSA) with an airline. The Department contended that the services fell under the taxable category of business auxiliary service. The appellant argued that the term "commission agent" in the definition of business auxiliary service did not apply to services at the relevant time and was introduced only in 2005. The appellant cited precedents to support their position, including the decision in the case of M/S Indair Carriers Pvt. Ltd. vs. CST, New Delhi and another case involving CST, Delhi vs. McCann Erickson (India) Pvt. Ltd.

Upon hearing both parties and examining the case records, the Tribunal analyzed the definition of business auxiliary service applicable at the relevant time, which included the phrase "promotion or marketing or sale of goods produced or provided or belonging to the client." The Tribunal noted that the inclusion of commission agent services in the definition was not specific about whether it applied to goods or services. The Tribunal referred to the amendment in the Finance Act, 2005, which explicitly brought provision of service by a commission agent into the definition of business auxiliary service from June 16, 2005, onwards.

Citing the precedent set by the Tribunal in the case of Indair Carriers Pvt Ltd., the Tribunal held that the amendment should have prospective effect and could not be applied retrospectively. The Tribunal also referenced a judgment by the Hon'ble Supreme Court in the case of Union of India vs. Martin Lottery Agencies Ltd., which established that substantive law introduced through an explanation would not have retrospective effect. As the period of dispute in the appellant's case was before the 2005 amendment, the Tribunal concluded that the appellant was not liable to pay service tax under business auxiliary service for that period. Consequently, the Tribunal set aside the impugned order and allowed the appeal in favor of the appellant.

In conclusion, the Tribunal's decision was based on the interpretation of the definition of business auxiliary service before and after the 2005 amendment, emphasizing that the appellant was not liable for service tax under business auxiliary service for the period preceding the legislative change.