2009 (9) TMI 94 - AT - Service Tax

Taxable and nontaxable services - had advanced amounts to employees of various Government departments to finance purchase of consumer durables and two wheelers. The said activity is hire purchase finance, held to be not exigible to service tax by various judicial authorities including the Apex Court and Tribunal - We hold that the service tax demand in relation to the business of hire purchase finance is not sustainable. Moreover, as noted by the Commissioner in the impugned order, the demand is based on financial accounts of the assessee. We find that service tax is leviable only on the taxable value realized. A major portion of the taxable value is on account of interest charge realized which in any case could not have validly formed part of taxable value since interest on loan was not taxable as per Section 67 of the Act as it existed at the material time - We also find force in the submission by the learned Counsel that commission received as insurance agent is not liable to service tax - In the light of the clarification issued by Ministry in its letter F. No. B.11/1/2002-TRU, dated 1-8-2002 stated supra, the claim of the appellants that the commission received on sale of consumer durables and two wheelers was exempted during the material period also deserves to be considered since the material period is prior to 7-6-2005 when the exemption to Business Auxiliary Service relating to sale or purchase of goods was withdrawn. In fine, we find that the impugned order has confirmed demand without examining the liability of the appellants to service tax in relation of various activities involved in the light of the legal provisions and clarifications issued by CBEC and Ministry of Finance. Accordingly, we set aside the impugned order and remand the matter to the Commissioner for a fresh decision

Summary

Issues:
1. Taxable value computation for service tax demand.
2. Liability of service tax on interest and charges.
3. Liability of service tax on commission received.
4. Applicability of service tax on hire purchase finance.
5. Exemption from service tax under specific notifications.
6. Need for remand to the adjudicating authority.

Issue 1: Taxable value computation for service tax demand
The case involved M/s. A.P. Trade Promotion Corporation Ltd. (APTPC) providing taxable services of hire purchase to government employees. The Commissioner demanded service tax based on the taxable value realized, which the appellants contested, claiming the figures from the balance sheet did not represent actual realization. They argued that they had discharged tax liability on the realized value and relied on CBEC's clarification. The appellants also disputed the demand on commission received for sale of goods, citing exemption notifications and Ministry instructions. The Tribunal observed that service tax should be levied only on the realized taxable value and remanded the matter for a fresh decision.

Issue 2: Liability of service tax on interest and charges
The appellants contended that interest collected should not be included in the taxable value as per Section 67 and relevant clarifications. The Tribunal agreed, noting that interest on loans was excluded from taxable value during the material period. They held that the demand based on financial accounts was not sustainable, as a significant portion of the taxable value was interest charges, which were non-taxable.

Issue 3: Liability of service tax on commission received
Regarding commission received by APTPC as an insurance agent, the Tribunal found merit in the argument that it was not liable to service tax. They referenced Ministry clarifications and exemption notifications to support the appellants' claim that the commission received on certain services was exempt from service tax during the material period.

Issue 4: Applicability of service tax on hire purchase finance
The Tribunal analyzed judicial precedents, including decisions by the Apex Court, which held that hire purchase finance was not covered under the service tax provisions. They concluded that the demand for service tax related to hire purchase finance by APTPC was not sustainable and set aside the demand.

Issue 5: Exemption from service tax under specific notifications
The appellants relied on specific notifications and Ministry instructions to argue for exemptions from service tax on certain activities. The Tribunal considered these arguments and remanded the matter to the Commissioner for a fresh decision, emphasizing the need to examine the liability in light of legal provisions and clarifications issued by CBEC and the Ministry of Finance.

Issue 6: Need for remand to the adjudicating authority
After considering all submissions, the Tribunal set aside the impugned order and remanded the matter to the Commissioner for a fresh decision. They directed that the appellants should be given an opportunity to present their case effectively before a new decision is made. The appeal was disposed of by way of remand to the Commissioner, and the stay petition was also disposed of.

This detailed analysis of the judgment highlights the key legal issues, arguments presented by the parties, relevant legal provisions, and the Tribunal's decision to remand the matter for a fresh decision based on a thorough examination of the liability to service tax.