2019 (3) TMI 1050 - AT - Service Tax

Business Auxiliary Services - individual and not Commercial Concern - processing of the pay role of sales executives of ICICI and to work out and timely payment of emoluments of the canvassers and to monitor monthly attendance of canvassers - period from May 2004 to December 2004 - Held that - The appellant in the instant case is an individual - Reliance placed in the case of Krishan Murari Gupta vs. Commr. of C. Ex. & S.T. Jaipur-I 2016 (6) TMI 723 - CESTAT NEW DELHI where it was held that the appellant was a proprietary concern and not an individual. It is trite to say that a proprietary concern rendering the said service is a commercial concern. Also N/N. 14/04 grants exemption to individuals providing the Business Auxiliary Services . Appeal allowed - decided in favor of appellant.

Summary

Issues:
Confirmation of demand of Service Tax, interest, and imposition of penalty based on the provision of Business Auxiliary Services by an individual proprietor.

Analysis:
The appeal was filed against the confirmation of demand of Service Tax, interest, and penalty by an individual proprietor providing services to ICICI bank, including processing payrolls and monitoring attendance. The appellant argued that as an individual proprietor, they could not be considered a "commercial concern" before 30/04/2006, thus exempt from tax under Business Auxiliary Services. The appellant relied on relevant case laws and Circulars to support their argument. The AR, however, supported the impugned order.

The Tribunal examined the submissions and noted that the appellant being an individual, cannot be treated as a commercial concern. Citing previous decisions, the Tribunal emphasized that a sole-proprietor business qualifies as a commercial concern. The Tribunal also referred to CBEC notifications clarifying the scope of Business Auxiliary Services relating to procurement, inventory, and production. It was highlighted that notification 14/04 granted exemption to individuals providing such services. Therefore, the Tribunal concluded that prior to 30/04/2006, no duty could be levied on individuals under Business Auxiliary Services, leading to the allowance of the appeal.

In conclusion, the Tribunal allowed the appeal, emphasizing that as an individual proprietor, the appellant could not be considered a commercial concern before 30/04/2006, and therefore, no duty could be levied on them under Business Auxiliary Services. The decision was based on a thorough analysis of relevant legal provisions, case laws, and notifications, ensuring a fair and just outcome for the appellant.