2023 (10) TMI 353 - AT - Service Tax

Levy of Service Tax - Business Auxiliary Service - deduction of 10%/12.5% as commission and after deduction of the said commission the amount was realized against the exports proceeds - levy of service tax on the GTA service availed in respect of goods actually exported - time limitation - HELD THAT - If any amount in the sale invoice is deducted by whatever name, the same is nothing but discount given during the course of sale of goods. In the present transaction only appellant being a seller of the goods and foreign buyer of the goods are involved. Therefore, relationship between the appellant and the foreign buyer is of seller and buyer of the goods and the transaction is purely of sale of goods. Even, though the word commission is mentioned in invoice and the same was deducted from the sale price, it is nothing but extended the discount to the buyer. The commission shall be chargeable to the Service Tax only in case, if there is a third party who has independently provided the commission agent service in relation to sales promotion and related service. In the present case no independent sales commission agent is involved. This Tribunal has taken a consistent view that merely by mention of commission or any other term, whereby the deduction was given in the sale invoice, the same cannot be treated as commission for the purpose of levy of Service Tax under business Auxiliary Service . Accordingly, the demand of service tax on the commission shall not sustain. Time Limitation - HELD THAT - Since this sale is for export of goods obviously the departmental officers have verified the transaction at the time of export for various reason of refund/ drawback or any other export incentive. Accordingly, the entire fact about the commission being shown deduction in the sales invoice was very much in the knowledge of the department. The appellant being registered manufacturer with Central Excise having filed their regular return to the department, there is absolutely no suppression of fact of mis-declaration on the part of the appellant. Revenue Neutrality - HELD THAT - The present case is of revenue neutrality for this reason also extended period cannot be invoked as held in various judgments. This proposition is agreed with, that if at all there is a service tax liability on the commission the appellant is not only entitled for Cenvat credit but also prima facie eligible for refund, as the said commission service is exclusively in respect of export of goods. For this reason also the demand for extend is not invokable. Accordingly, the demand of service tax on the commission as well as on GTA service is not sustainable also on the ground of limitation - the impugned orders are not sustainable - appeal allowed.

Summary

Issues Involved:
1. Whether the deduction shown as commission in the sales invoice is chargeable to Service Tax under 'Business Auxiliary Service'.
2. Whether the appellant is liable to pay service tax on the GTA service availed in respect of goods actually exported.
3. Whether the demand is sustainable on the ground of limitation.

Summary:

1. Commission in Sales Invoice:
The appellant deducted 10%/12.5% as commission in their sales invoices for exported goods. The department contended that this deduction is a commission paid to foreign buyers and is chargeable to Service Tax under 'Business Auxiliary Service' as per Section 66A read with Rule 2(1)(d)(iv) of Service Tax Rules, 1994. The Tribunal found that the deduction labeled as commission is actually a trade discount given during the sale of goods. There was no third-party commission agent involved, thus no commission agent service was provided. The Tribunal referenced multiple judgments, including Laxmi Exports and Duflon Industries Pvt. Ltd., which supported the view that such deductions are trade discounts, not commission charges, and hence not subject to Service Tax.

2. Service Tax on GTA for Exported Goods:
In appeal No. ST/11773/2016, the issue was whether the appellant is liable to pay service tax on the GTA service availed for exporting goods. The appellant argued that since the GTA service was used for export, it is eligible for exemption under Notifications 18/2009-ST and 31/2012-ST. The Tribunal agreed that the service tax demand on GTA is not sustainable as the service was used for export, making it eligible for exemption.

3. Limitation and Extended Period:
The appellant contended that the demand was raised by invoking the extended period, but since the commission was declared in the sales invoices and known to the department, there was no suppression of facts. The Tribunal agreed, noting that the appellant had been transparent in their documentation and the transactions were verified during export processing. The Tribunal cited judgments such as J.P.P. Mills Pvt. Limited and Texyard International, supporting the appellant's case that there was no suppression of facts, and thus, the extended period for demand is not applicable. Additionally, the Tribunal noted that even if the service tax was applicable, it would be revenue-neutral as the appellant could claim Cenvat credit.

Conclusion:
The Tribunal set aside the impugned orders, ruling that the demand for service tax on the commission and GTA services is not sustainable. The appeals were allowed with consequential relief.