2020 (2) TMI 1013 - AT - Service Tax

Business Auxiliary Service - surplus amount - collection of toll, royalty, on behalf of the State Government or Government Department - appellant may either collect more amount than the bid amount and thereby have some profit or surplus or they may collect less amount than the bid amount and thus incur loss - it appeared to Revenue that the surplus amount collected by the appellant, is commission earned for providing the toll/ royalty collection service to the Government. HELD THAT - There is no defined consideration, which is an essential element or pre-condition in a contract of service. Admittedly, appellant is not entitled to retain any amount by way of commission, irrespective of the total amount of royalty collected. Admittedly, the appellant incurred loss in some financial year and have got surplus in some of the financial years. Further, it is admitted fact on record that there is no defined consideration, as required under Section 65B(44) of the Finance Act. The appellant have provided no service to the Department of Mines Geology, Government of Rajasthan. The appellant have entered into business on principal to principal basis - impugned order not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Demand of service tax under the category of 'Business Auxiliary Service' (BAS) for collection of toll/royalty by the appellant. Interpretation of the term 'service' under Section 65B(44) of the Finance Act. Applicability of service tax on yearly instalments for assignment of right to use natural resources. Determination of whether royalty is a consideration for service tax.

Analysis:

Issue 1:
The appellant, engaged in collection of toll/royalty for the State Government, faced a dispute regarding the demand of service tax under the category of 'Business Auxiliary Service' (BAS). The Revenue contended that the surplus amount collected by the appellant constituted commission earned for providing toll/royalty collection service, thus attracting service tax.

Issue 2:
The interpretation of the term 'service' under Section 65B(44) of the Finance Act was crucial in determining the liability for service tax. The absence of defined consideration in the contract was highlighted as a key factor in deciding whether the appellant's activities qualified as a taxable service.

Issue 3:
The ruling of the Rajasthan High Court in a related case concerning the applicability of service tax on yearly instalments for the assignment of right to use natural resources, specifically mining leases, was considered. The High Court's decision emphasized that royalty could be construed as a consideration for service tax, particularly in the context of mining operations.

Issue 4:
The determination of whether royalty constituted a consideration for service tax was pivotal. The Commissioner (Appeals) concluded that the amount collected by the appellant over and above the bid amount could be deemed as commission or consideration for the service provided, thus making it liable for service tax under the category of 'BAS'.

Judgment:
The Hon'ble Member (Judicial) of the Appellate Tribunal CESTAT NEW DELHI, after considering the arguments, held that the appellant had not provided any service to the Department of Mines & Geology, Government of Rajasthan, as there was no defined consideration as required under the Finance Act. The appellant's engagement was viewed as a business transaction on a principal-to-principal basis, leading to the setting aside of the impugned orders demanding service tax. The appeals were allowed, granting the appellants consequential benefits in accordance with the law.