2018 (6) TMI 192 - AT - Service Tax

Business Auxiliary Service or Manufacture - activity of cutting, straightening and bending - whether the activity amounts to manufacture or provision of Business Auxiliary Services? - Extended period of limitation - Held that - There is no dispute as to the fact appellant is undertaking the activity of bending, straightening cutting of steel wire rod coils received from the traders, this activity would be covered under the Business Auxiliary Service. The activity of appellant would fall under Clause (v) wherein, the processing of the goods for, or on behalf of the client has been considered as Business Auxiliary Service and the service tax liability would arise - demand of service tax liability with interest upheld. Extended period of Limitation - Held that - Since the appellant failed to take any registration/certificate the service tax, demand for the extended period is correctly confirmed. Penalty u/s 76 and 78 - Held that - Since, the demand of service tax liability which is confirmed under Proviso to Section 73 of the Finance Act, 1944, is upheld, the equivalent amount of penalty under Section 78 gets attracted - penalty under Section 76 need not be imposed as both the penalties u/s 76 and 78 are not to be imposed. The service tax liability with interest and equivalent penalty under Section 78 is upheld, while penalty imposed under Section 76 is set aside - appeal allowed in part.

Summary

Issues:
1. Whether the appellant's activity falls under the category of Business Auxiliary Service.
2. Whether the demand for the year 2004-2005 is within the limitation period.
3. Whether penalties under Section 76 and 78 of the Finance Act, 1994 should be imposed.

Analysis:

Issue 1:
The appellant was engaged in cutting, straightening, and bending steel wire rod coils for various steel traders. The Revenue argued that this activity falls under Business Auxiliary Service as per the Finance Act, 1994. The Tribunal found that the appellant's activity of processing goods for traders indeed falls under Business Auxiliary Service as per the relevant definition. The Tribunal rejected the argument that the Department was confused, citing precedents to uphold the service tax liability.

Issue 2:
The appellant contested the demand for the year 2004-2005 on limitation grounds. The Tribunal noted that the confusion alleged by the appellant was not applicable in this case, as the demand was solely for service tax, not excise duty. Since the appellant had not obtained registration, the extended period for limitation was correctly invoked, and the service tax liability was upheld.

Issue 3:
Regarding penalties, the Tribunal upheld the service tax liability and imposed an equivalent penalty under Section 78 of the Finance Act, 1994. However, the Tribunal set aside the penalty under Section 76, citing a judgment that clarified the applicability of penalties under different circumstances. The appeal was disposed of with the service tax liability, interest, and penalty under Section 78 upheld, while the penalty under Section 76 was set aside.

In conclusion, the Tribunal upheld the service tax liability for the appellant's activity falling under Business Auxiliary Service, rejected the limitation argument, and imposed penalties as per the provisions of the Finance Act, 1994.