2024 (4) TMI 676 - AT - Service Tax

Recovery of service tax alongwith interest and penalty - Business Auxiliary Service - the facts and the law and binding judicial precedents on the identical issue not properly appreciated - violation of principles of natural justice - Extended period of limitation - HELD THAT - The identical issue has been considered by the Tribunal in the case of M/S S.R. MEDICAL AGENCIES VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-II 2023 (8) TMI 1150 - CESTAT CHANDIGARH and this Tribunal after considering all the submissions of both the parties has held This issue has been considered by various benches of the Tribunal and has consistently been held that the assessee is not liable to pay service tax under the category of Business Auxiliary Service . The impugned order is not sustainable in law and therefore, the same is set aside - appeal allowed.

Issues Involved:
1. Validity of the demand for service tax under the category of "Business Auxiliary Service".
2. Applicability of double taxation principles.
3. Justification of the extended period of limitation for the demand.
4. Legitimacy of interest and penalty imposition.

Summary:

1. Validity of the Demand for Service Tax:
The appellant, an authorized distributor of BSNL, was issued a show cause notice demanding service tax on the commission received from BSNL, categorized under "Business Auxiliary Service" u/s 65(19) of the Finance Act, 1994. The appellant contested this demand, arguing that BSNL had already discharged the service tax liability on the full value of the Mobile Service Charges (MSC), including the appellant's commission. The Tribunal found that the issue had been consistently settled by various benches, concluding that the appellant is not liable to pay service tax under "Business Auxiliary Service" as the tax on the full MRP value had already been discharged by BSNL.

2. Applicability of Double Taxation Principles:
The appellant argued that charging service tax on the commission would result in double taxation since BSNL had already included the commission in the gross amount on which service tax was paid. The Tribunal upheld this argument, citing precedents where it was established that the commission paid to distributors is included in the value on which tax has been collected from the customer. Therefore, taxing the commission separately would amount to double taxation.

3. Justification of the Extended Period of Limitation:
The appellant contended that invoking the extended period of limitation was unjustified as the department was aware of their activities, evidenced by the sanctioned refund claim and the surrendered registration certificate. The Tribunal agreed, referencing several Supreme Court decisions that supported the appellant's position, indicating no suppression of facts or intent to evade tax.

4. Legitimacy of Interest and Penalty Imposition:
Given that the primary demand for service tax was found unsustainable, the Tribunal concluded that the associated demands for interest and penalties u/s 75, 76, 77, and 78 of the Finance Act, 1994, were also not justified.

Conclusion:
The Tribunal set aside the impugned order, allowing the appeal of the appellant with consequential relief, if any, as per law. The decision was based on consistent judicial precedents and the principle that service tax on the commission would result in double taxation.

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