2009 (12) TMI 434 - AT - Service Tax

Stay Valuation - the appellants submitted that in the case of C and F Agent service, the department has demanded service tax of Rs.15,12,857/- on the ground that the amounts reimbursed by the Principal towards various expenses such as telephone charges, electricity charges, transportation charges, salary etc are liable to service tax. Held that submission that series of decision of Tribunal hold such expenses not includible. Stay granted.

Summary

Issues:
1. Demand of service tax on various services provided by the appellants.
2. Service tax liability on reimbursement of expenses.
3. Service tax on incentive received from a company.
4. Service tax liability as a franchisee of a company.

Analysis:
1. The appellants were engaged in providing services like Commission and Forwarding agent services, franchisee services, etc. A demand of service tax amounting to Rs.18,88,731/- was confirmed along with interest and penalty under Section 78 of the Finance Act, 1994. The advocate for the appellants argued against the demand, citing Tribunal decisions that expenses reimbursed by the Principal are not liable for service tax. The advocate also contested the service tax on incentives received from a company, arguing that they were not for sales promotion but for achieving sales targets. Additionally, the advocate challenged the service tax demand on franchise services, stating that as a franchisee, the appellants should not be liable for service tax.

2. The Department argued that reimbursement of various expenses like handling charges, telephone, electricity, and transport charges should be included in the service tax calculation as part of the amount payable to the appellants. The Department also supported the service tax demands on incentives and franchise services based on the reasoning adopted by lower authorities.

3. After considering both sides' submissions, the Tribunal found merit in the appellants' arguments. They noted that in a similar case involving M/s. Amit Sales, the matter had been referred to a Larger Bench, and an unconditional stay had been granted. The Tribunal agreed to allow a stay petition for this item. Regarding the incentive received, the Tribunal agreed with the appellants' position that the incentive was not for sales promotion but for achieving sales targets, thus granting a stay. In the case of franchise services, the Tribunal found that the definition required the franchisor to pay service tax, not the franchisee. Therefore, the Tribunal granted a full waiver of the pre-deposit of service tax, interest, and penalty, allowing the stay petition during the appeal's pendency.

4. The Tribunal's decision resulted in the waiver of the pre-deposit requirement and the stay of the service tax demand, interest, and penalty imposed on the appellants during the appeal process. The judgment was dictated and pronounced in the Court by the Members of the Tribunal.