2009 (6) TMI 423 - HC - Service Tax

Business Auxiliary Services Advance Loan The Respondent was engaged by City Bank Ltd. for helping them to advance loans to parties and for recovering the same. Whether the exemption under clause (e) of Notification No. 25/2004-ST rightly granted to the Respondent? In this case Kerala High Court-held that the matter is not considered by the Tribunal in the light of the interpretation of the notification, we set aside the order of the tribunal and remand the matter to the Tribunal for reconsideration of the issue after hearing both sides and after calling for agreement, bills for payments received, etc. from the respondent. Respondent should be given an opportunity to produce records pertaining to clause (d) which they have made in the appeal.

Summary

Issues:
- Challenge to the order of the Customs, Excise and Service Tax Appellate Tribunal granting exemption to the respondent from liability for service tax.
- Interpretation of Notification No. 25/2004-ST dated 10-9-2004 regarding service tax exemption for specified services.
- Determination of eligibility for exemption under clause (e) for banking and financial services or under clause (d) for business auxiliary services.
- Requirement for Tribunal to consider the nature of services rendered by the respondent to determine eligibility for exemption.

Analysis:
The High Court addressed the appeal challenging the Customs, Excise and Service Tax Appellate Tribunal's order granting the respondent exemption from service tax liability. The respondent was engaged by City Bank Ltd. for business auxiliary services, attracting service tax under Section 65(19) of the Finance Act, 1994. The Tribunal granted exemption to the respondent based on clause (e) of Notification No. 25/2004-ST dated 10-9-2004, which pertains to services provided to a customer by a body corporate in relation to banking and financial services. However, the High Court noted that the respondent was not engaged in banking or financial services, making clause (e) inapplicable. The Tribunal should have considered the eligibility for exemption under clause (d) for business auxiliary services, which specifies the types of services eligible for exemption.

The High Court emphasized that the Tribunal failed to properly interpret the notification and determine if the services provided by the respondent fell under clause (d) for business auxiliary services. The Court highlighted the importance of examining the agreement between the parties, the nature of services rendered to City Bank Ltd., and whether these services fit the categories specified in sub-clauses (i) to (iii) of clause (d). The Tribunal should have also assessed if any services provided were incidental to those mentioned in sub-clauses (i) to (iii) to declare exemption accurately.

As a result of the Tribunal's oversight in analyzing the notification and the services provided by the respondent, the High Court set aside the Tribunal's order and remanded the matter for reconsideration. The Tribunal was instructed to reevaluate the issue after hearing both parties and examining relevant documents such as agreements and payment records. The respondent was directed to provide records related to clause (d) to assist in determining eligibility for exemption under the correct category of services as per the notification.