2008 (1) TMI 231 - AT - Service Tax

Business Auxiliary Service - Assessee states that during the impugned period 10-9-04 to 15-6-05, even for the smaller customers, the appellants have also rendered free service to supply gas in question as the small customers are not in a position to buy the gas directly from M/s. I.O.C.L - since they have not recovered any amount towards supply of the gas except for the transmission of the gas, stay is granted

Summary

Issues:
1. Liability to pay Service Tax under the category of Business Auxiliary Service for gas transportation services provided to customers by the appellants.

Analysis:
The case involved a dispute regarding the liability of the appellants to pay Service Tax under the category of Business Auxiliary Service for providing gas transportation services to customers. The appellants carried gas from M/s. I.O.C.L to various customers, with different payment arrangements for large and smaller customers. For large customers, the customers directly paid M/s. I.O.C.L for the gas, and the appellants only recovered the cost of transportation. On the other hand, for smaller customers, the appellants bought gas from M/s. I.O.C.L at a fixed price and recovered the cost from the customers on an actual basis, in addition to the cost of transportation.

During the period in question, the appellants did not charge either large or smaller customers for the procurement and supply of gas. The appellants argued that since they did not recover any service charges for the procurement of gas and had not charged any amount for alleged services, they were not liable to pay Service Tax under the Business Auxiliary Service category. The Department's representative acknowledged that no Service Tax was payable for supplies to larger customers since the cost of gas was directly paid to M/s. I.O.C.L. However, the Department contended that Service Tax was due for supplies to smaller customers due to the gas procurement involved.

The Appellate Tribunal found that the adjudicating Commissioner had not distinguished between larger and smaller customers and had imposed Service Tax on the entire receipts of the appellants. The Tribunal noted the appellants' argument that they provided free service to supply gas to smaller customers who could not buy directly from M/s. I.O.C.L. The Tribunal agreed with the appellants' position that they had not recovered any service charges for the supply of gas, except for transmission, and therefore, they were not liable to pay Service Tax for smaller customers as well.

Based on the submissions and the prima facie case in favor of the appellants, the Tribunal waived the requirement of predeposit. The parties were granted the liberty to apply for early hearing, considering the substantial amount involved. The judgment highlighted the importance of distinguishing between different customer categories and the nature of services provided in determining the liability for Service Tax under the Business Auxiliary Service category.