2019 (3) TMI 1279 - AT - Service Tax

Time limitation - Classification of services - Business Auxiliary Service or Support Services of Business of Commerce? - difference of opinion - majority order - Held that - For invoking the extended period of limitation both suppression and intention to evade payment of Tax are to be separately established. In the present case since suppression could not be established therefore, the views expressed by learned Member (Judicial) that the demand was barred by limitation is agreed upon. The majority decision is that the demand raised by way of invoking the extended period of limitation is required to be held as time barred by limitation - A small part of demand falling under normal period may be requantified and recovered by Assistant Commissioner alongwith applicable interest - Penalty is set aside - appeal allowed in part.

Summary

Issues Involved:
1. Classification of services under Business Support Services.
2. Applicability of VAT vs. Service Tax.
3. Time-barred demand and extended period of limitation.
4. Imposition of penalty.

Detailed Analysis:

1. Classification of Services under Business Support Services:
The appellant was registered for Business Auxiliary Service but entered into a contract with M/s (n) Code Solution to act as a single point of contact for identification processes and verification of documents for Digital Signature Certificates. The revenue classified this activity as Business Support Services, leading to a demand for Service Tax. The Commissioner (Appeals) upheld this classification, confirming the demand and penalty. The Tribunal agreed with the revenue's classification, noting that the appellant's responsibilities were defined by M/s (n) Code Solution and did not constitute a sale transaction.

2. Applicability of VAT vs. Service Tax:
The appellant argued that their activity involved the purchase and sale of E-Tokens, which was subject to VAT, not Service Tax. They compared their activity to the sale of SIM cards, claiming it was a sovereign function and thus not taxable under Service Tax. The Tribunal, however, found that the appellant's role as defined by the agreement with M/s (n) Code Solution did not support the claim of a sale transaction. The Tribunal concluded that the transaction was not of sale and purchase, thus falling under the purview of Service Tax.

3. Time-barred Demand and Extended Period of Limitation:
The demand was raised for the period 2008-09 to 2010-11 via a show cause notice dated 18.10.2012. The appellant contended that the demand was time-barred, citing that all transactions were duly recorded in their balance sheets and other statutory documents, indicating no intention to evade tax. The Commissioner (Appeals) and the Additional Commissioner invoked the extended period of limitation, asserting suppression of taxable value. However, the Judicial Member disagreed, emphasizing that the appellant's transparency in maintaining records and filing with other tax authorities indicated a bona fide belief that their activities were not taxable. The Judicial Member referenced several Tribunal decisions supporting the appellant's stance that the extended period of limitation was not applicable without clear evidence of suppression or intent to evade tax.

4. Imposition of Penalty:
Given the findings on the time-bar issue, the Judicial Member held that the imposition of penalties was unjustified. The absence of mala fide intent and the appellant's compliance with statutory requirements negated the grounds for penal action. The Technical Member, upon review, concurred with the Judicial Member's assessment, leading to the conclusion that penalties should be set aside.

Final Judgment:
The majority decision held that the demand raised by invoking the extended period of limitation was time-barred. A small part of the demand falling within the normal period was to be re-quantified and recovered by the Assistant Commissioner along with applicable interest. The penalty imposed on the appellant was set aside. The appeal was allowed in part, reflecting the Tribunal's comprehensive analysis of the issues and adherence to legal principles.