2018 (6) TMI 480 - AT - Service Tax

Demand of service tax - appellant is a non-profit institution and is registered as a charitable institution under Section 12A of the Income Tax Act, 1961 - Technical Inspection and Certification Services - Membership of Club & Association Services - Business Exhibition Service - Business Auxiliary Services. Club & Association Services - If the service provided by the Appellant to its members can be treated a Service at all? - mutuality of interest - Held that - The matter being subjudice before the Hon Apex Court in the case of State of West Bengal &Ors. Vs. Calcutta Club Ltd. 2016 (6) TMI 476 - SUPREME COURT , no final view can be taken at this stage on the issue regarding services provided by the appellant to its members. The next ground to challenge the demand under Membership of Club & Association Services is decision of Tribunal in the case of Federation of Indian Chambers of Commerce & Industries (FICCI) 2014 (5) TMI 183 - CESTAT NEW DELHI - The Ld counsel for appellant has argued that in the case of FICCI, the Tribunal after examining the definition of Club and Association Service has held that Electronic and Computer Software Export Promotion Council would fall under the exclusionary clause (i) of Section 65(25a) of the Act. Section 65(25a) of the Act defines Club or Association - Held that - The ratio of this decision squarely applies to the instant case. The appellants are identically placed organization. The facts in the case of Federation of Indian Chambers of Commerce & Industries squarely apply to the instant case, Thus no demand can be made against the appellant under the head of Club or Association service - appeal allowed. Technical Inspection and Certification Services - services provided by the appellant in respect of issuing Kimberley Process Certificate - Held that - It is seen that the duty of issuing the KP cerificates has been expressly and exclusively, by law given to the appellant. The appellants are a body created under the law. In these circumstances it cannot be denied that the issue of KP is a mandatory and statutory function and the benefit of the circular cannot be denied to the appellants - even if the service is held to be classifiable as Technical Inspection and Certification Services, still being statutory and mandatory nature no tax can be demanded in terms of the circular dated 18.12.2006 - decided in favor of appellant. Business exhibition service - Business Auxiliary Service - case of Revenue is that the claim of reimbursement towards expenses like rent for premises, telephone charges, stationery charges, etc. cannot be permitted as reimbursable expenses - Held that - There are no evidence in support of the reimbursable nature of these expenses has been brought and therefore the claim made by appellants cannot be accepted - appeal dismissed. Penalty 76 and 77 of FA - Held that - The issue regarding the excludability of the specific costs from the assessable value is clear. There are very specific tests provided in law for that purpose. In the facts of the case there is no scope for doubt. In these circumstances the penalty u/s 76 in respect of the amount of demand confirmed - penalty u/s 77 also upheld. Appeal allowed in part.

Summary

Issues Involved:
1. Demand of Service Tax under Technical Inspection and Certification Services.
2. Demand of Service Tax under Membership of Club & Association Services.
3. Demand of Service Tax under Business Exhibition Services.
4. Demand of Service Tax under Business Auxiliary Services.
5. Imposition of penalties under Section 76 & 77 of the Finance Act, 1994.

Detailed Analysis:

1. Technical Inspection and Certification Services:
The appellant argued that issuing Kimberley Process Certificates (KP Certificates) does not involve any inspection or examination of goods, but is based on documents provided by exporters/importers. This process does not fall under Technical Inspection and Certification Services as defined under Section 65(108) of the Finance Act, 1994. The appellant further argued that such services are statutory and mandatory, thus exempt from service tax as per Circular No. 89/7/2006-S.T. dated 18.12.2006. The Tribunal found that the KP certification process involves no physical inspection and is a statutory function, thus exempt from service tax. The appeal on this count was allowed.

2. Membership of Club & Association Services:
The appellant claimed exemption under Section 65(25a) of the Finance Act, 1994, arguing that it is a body constituted under the EXIM Policy, similar to the Federation of Indian Chambers of Commerce & Industries (FICCI), which was excluded from the definition of Club or Association. The Tribunal agreed, noting that the appellant is an Export Promotion Council constituted under the Foreign Trade Policy, and thus falls under the exclusionary clause. The appeal on this count was allowed.

3. Business Exhibition Services:
The appellant contended that it acted as a pure agent in organizing 'Safe Deposit Vault' for foreign exhibitors, reimbursing expenses exactly as received from exhibitors. The Tribunal, referencing the decision in Bhagvathy Traders, found no evidence supporting the claim of reimbursable expenses and dismissed the appeal on this count.

4. Business Auxiliary Services:
The appellant argued that amounts collected for booking stalls in foreign exhibitions were reimbursements and not taxable. The Tribunal found no evidence supporting the reimbursable nature of these expenses and dismissed the appeal on this count.

5. Imposition of Penalties:
The Tribunal upheld the penalties under Sections 76 and 77 of the Finance Act, 1994, noting that the issue regarding the excludability of specific costs from the assessable value was clear and there was no scope for doubt.

Conclusion:
The appeal was partly allowed, with the Tribunal ruling in favor of the appellant on the issues of Technical Inspection and Certification Services and Membership of Club & Association Services, while dismissing the appeal on Business Exhibition Services and Business Auxiliary Services. Penalties under Sections 76 and 77 were upheld.