2022 (10) TMI 879 - AT - Service Tax

Levy of service tax on Commission - Business Auxiliary Service - appellant have shown the income and booked in their profit and loss account as commission - exemption as per N/N. 13/2003-ST dated 20.06.2003 - HELD THAT - The appellant have provided the service of Software Consultancy Service. As regard the mentioning in the profit and loss account as commission it clearly appears that there is a mistake occurred in mentioning the expenditure in the books of accounts. Therefore, the service provided by the appellant is of Software Consultancy Charges, accordingly, the demand under Commissioner in the head of Business Auxiliary Service is not sustainable - it is found that the service tax in the Commission Agent Service was clearly exempted unconditionally under Notification No.13/2003- ST dated 20.06.2003 up to the period of 08.07.2004. The entire demand for the period 2004-2005 is on the invoices issued on 15.04.2004 and 15.05.2004, therefore, these transactions are clearly under the exemption. Demand of Rs.73440/- for the period 2006-2007 - HELD THAT - Even in the books of account, the appellant have booked the expenditure under the head of Software Consultancy Service, therefore, the demand treating the receipt as the commission under Business Auxiliary Service would not sustain. Demand of Rs.2363/- - Penalty - HELD THAT - The appellant have not contested with the same as the same was related to Finance Consultancy Service and the same was discharged by the appellant. They are only contesting the penalty. Considering the meager amount and in the facts and circumstances of the present case, it is found that appellant have made a fit case for waiver of the penalty corresponding to Rs.2363/- demand, accordingly, the penalty is also not sustained. Appeal disposed off.

Summary

Issues:
1. Classification of service as Commission Agent or Software Consultancy Charges.
2. Applicability of Business Auxiliary Service and exemption under Notification No.13/2003-ST.
3. Dispute regarding demand for different periods and contesting of penalty.

Analysis:
1. The appellant contended that the service provided was Software Consultancy Charges, not Commission Agent service. They argued that the demand under Business Auxiliary Service treating the receipt as commission was not sustainable. The invoices presented supported the claim of Software Consultancy Service. The Tribunal agreed that the service provided was indeed Software Consultancy Charges, and any mention of commission in the profit and loss account was a mistake. They held that the demand under Business Auxiliary Service was not sustainable, especially considering the unconditional exemption under Notification No.13/2003-ST up to a certain period.

2. For the demand related to the period 2006-2007, the appellant had correctly booked the expenditure under Software Consultancy Service in their accounts. The Tribunal found that treating the receipt as commission under Business Auxiliary Service was not justified. Regarding the demand for 2007-2008, the appellant did not contest the amount but only the penalty. The Tribunal, considering the circumstances, waived the penalty corresponding to the demand. They concluded that the appellant had made a strong case for penalty waiver due to the trivial amount involved.

3. In summary, the Tribunal modified the impugned order based on the discussions and findings. They allowed the appeal, ruling in favor of the appellant regarding the classification of services, applicability of exemptions, and the contestation of penalties. The decision was pronounced in open court on 20.10.2022.