2009 (9) TMI 312 - AT - Service Tax

Banking and other Financial services- Notification No. 22/06-sT, dated 31.5.2006- The Appellant bank was an agent of the Reserve bank of India. Under an agreement, it undertook the government transactions, namely, collection of direct tax, payment of pension, human resource department transactions under various departments, the Government deposits like RBI Bonds, PPF, Senior Citizens Saving Schemes etc. and it charged commission on the government transactions. The activity fell under the category of Banking and other Financial Services of section 65(12)(a)(viii). The commissioner observed that as per Notification No. 22/06-ST, dated 31.5.2006, taxable services provided or to be provided to any person by the RBI was exempted from service tax liability during the period 1.9.2004 to 30.9.2007. There was no specific exemption from the said activity from liability to service tax. In the light of the judgment of the Apex Court, in State of madras v. Cement Allocation Coordinating organization manu/SC/0636/1997, held that service tax being an indirect tax, is a liability borne ultimately by the customers of the bank. In the instant case, the departments of Union Government were the client of the RBI. Therefore, tax on the activity, exempt when undertaken by the RBI, need not be levied when the same activity is undertaken by another bank as its agent. Thus passed the order for the waiver of pre-deposit and stay recovery of the dues.

Issues Involved:
1. Demand of Service Tax.
2. Penalty under Section 78 of the Finance Act, 1994.
3. Penalty under Section 76 of the Finance Act, 1994.
4. Penalty under Section 77 of the Finance Act, 1994.
5. Exemption applicability for services rendered as an agent of RBI.
6. Waiver of pre-deposit and stay of recovery.

Issue-wise Detailed Analysis:

1. Demand of Service Tax:
The appellant, a bank, was adjudged a service tax demand of Rs. 5,97,47,205 along with applicable interest for rendering taxable services classified as 'operation of bank accounts' from 10-9-2004 to September 2007. The bank undertook various government transactions and received agency commission for these services. The Commissioner found that these activities fell under the category of "Banking and Other Financial Services" as defined under section 65(12)(a)(viii) of the Finance Act, 1994. The bank was liable to discharge service tax on the agency commission received, amounting to Rs. 53,35,19,512 during the period in question.

2. Penalty under Section 78 of the Finance Act, 1994:
A penalty equal to the service tax amount (Rs. 5,97,47,205) was imposed under section 78 for suppression of facts. The Commissioner found that the entire tax had escaped assessment due to the bank's suppression of information, rejecting the bank's argument that it was performing statutory functions as an agent of the RBI, which should not be considered taxable services.

3. Penalty under Section 76 of the Finance Act, 1994:
The bank was also penalized under section 76 at the rate of Rs. 200 per day up to 18-4-2006 and thereafter at Rs. 200 per day during which the default continued or 2% of such tax per month, whichever was higher, starting from the first day after the due date till the actual payment of the tax.

4. Penalty under Section 77 of the Finance Act, 1994:
A penalty of Rs. 1,000 was imposed under section 77 for failure to comply with statutory provisions, including timely payment of tax and filing of prescribed ST-3 returns.

5. Exemption Applicability for Services Rendered as an Agent of RBI:
The appellant argued that as an agent of the RBI, the services rendered should be exempt from service tax under Notification No. 07/06-ST, dated 1-3-2006, which exempts services provided by RBI. They relied on the judgment in the case of State of Madras v. Cement Allocation Coordinating Organization, where the Supreme Court held that exemptions available to a principal extend to its agent. The Commissioner, however, held that there was no specific exemption for the bank's activities and that other banks had paid service tax on similar services.

6. Waiver of Pre-deposit and Stay of Recovery:
The appellant sought waiver of pre-deposit and stay of recovery of the adjudged dues. The Tribunal considered the case records and submissions, noting that the bank had a prima facie case against the demand based on the Apex Court's judgment in the Cement Allocation Coordinating Organization case. The Tribunal found that the bank, being solvent, posed no risk to revenue if the demands were ultimately sustained. Therefore, it ordered a waiver of pre-deposit and stay of recovery of the dues pending the appeal decision.

Conclusion:
The Tribunal concluded that the appellant bank had made a strong prima facie case against the demand of tax, interest, and penalties based on the Apex Court's judgment. It ordered a waiver of pre-deposit and stay of recovery of the dues, pending the decision in the appeal.

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