2020 (7) TMI 183 - AT - Service Tax

Business Auxiliary Services - distributor s margin received by the Appellant from BSNL for Re-sale of cellular products - HELD THAT - While dealing with the similar facts and circumstances in the case of COMMISSIONER CENTRAL EXCISE, LUCKNOW VERSUS M/S CHOTEY LAL RADHEY SHYAM 2017 (9) TMI 509 - ALLAHABAD HIGH COURT , it is held that there is no agency service or sales promotion service provided in such transactions, but it is a case of sale/purchase of item from BSNL on principle to principle basis which is pure trading activity and on the cellular products, the BSNL has already discharged Service Tax, hence, demanding service tax again from the trader would amount to double taxation. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether distributor's margin received by the Appellant from BSNL for re-sale of cellular products is chargeable to service tax under Business Auxiliary Service.
2. Whether the transactions between the Appellant and BSNL were for sale/purchase of goods or for rendition of any service.

Analysis:

Issue 1:
The Appellant, a Distributor/Re-Seller of BSNL's cellular products, was involved in purchasing products at wholesale prices from BSNL and selling them at retail prices, earning a profit margin. The Ld. Deputy Commissioner issued Show Cause Notices demanding Service Tax under Business Auxiliary Service for specific periods, which were upheld by the Adjudication Order. The Ld. Commissioner (Appeals) also upheld the Adjudication Order, stating that the distributor's margin received by the Appellant is chargeable to service tax under Business Auxiliary Service. However, the Appellant argued that the transactions were for sale/purchase of goods and not for any service, citing relevant case laws.

Issue 2:
During the hearing, the Appellant's representative relied on judgments from the Allahabad High Court and the Tribunal to support the contention that the transactions were purely sale/purchase activities and not subject to service tax. The Hon'ble Tribunal, after considering the arguments and precedents, noted that in similar cases, it was held that demanding service tax from the trader would lead to double taxation since the principle (BSNL) had already paid service tax on the cellular products. The Tribunal found the Appellant's case aligned with the decisions in the cited judgments and concluded that the transactions were trading activities without any additional service element. Therefore, the impugned Orders were set aside, and the Appeals were allowed based on the established legal principles and precedents.

This comprehensive analysis of the judgment highlights the key issues, arguments presented, legal precedents cited, and the Tribunal's decision, providing a detailed understanding of the case and its legal implications.