2012 (11) TMI 832 - AT - Service Tax

Waiver of pre-deposit - credit card business business auxiliary service (BAS) - VISA/Mastercard - payments received by the appellants for promoting the business of the brand name owners. - held that - the appellants were promoting the business of VISA/MasterCard and the impugned payments were for that. - So we are prima facie not in agreement with the first leg of the argument that the activity was only that of brand name promotion taxable from 1-07-2010. The service could qualify both as promoting the business of Visa/Mastercard and also as providing service on behalf of Visa/Mastercard. Export of services - held that - this issue is presently under consideration in the case of Microsoft Coprn. (India) (P.) Ltd. v. CST 2011 (11) TMI 60 - CESTAT, NEW DELHI before Delhi Bench. The matter stands referred to a third Member to resolve the difference in opinion between the Members of the Bench which heard the matter. - At this stage the benefit of the difference in views could go to the appellant. So at this stage we go by the location of the service provider and take a tentative conclusion that the services were exported. - Stay granted.

Summary

Issues:
1. Whether the services provided by the appellants to promote the business of brand name owners are covered under Business Auxiliary Service?
2. Whether the payments received by the appellants for promoting the brand names of "Visa" and "Mastercard" are taxable under Business Auxiliary Service?
3. Whether the services provided by the appellants can be considered as exported services under the Export of Services Rules, 2005?

Analysis:

Issue 1:
The Revenue argued that the services provided by the appellants to customers on behalf of brand owners fall under Business Auxiliary Service as per the Finance Act, 1994. The appellants contested this, claiming that they were promoting their own business and not the services of "Visa" or "Mastercard." They argued that they were providing credit card services under their name, not the brand owners' names.

Issue 2:
The appellants further contended that the services provided were for promoting the brand of "Visa" or "Mastercard" and that such services could not have been taxed under Business Auxiliary Service before 01-07-2010 when a new entry for "Brand Promotion Service" was introduced. They also highlighted that the services could be considered as exported services under the Export of Services Rules, 2005, as the brand name owners were located abroad.

Issue 3:
The Revenue relied on specific clauses in the agreements with "Visa" and "Mastercard" to argue that the services provided by the appellants were in promotion of the brand names and business of the brand owners. The Tribunal noted that the revenue generated from the joint business was through commission sharing, which was not in dispute. The Tribunal was of the view that the appellants were promoting the business of "Visa" and "Mastercard," and the payments received were for that purpose. Regarding the question of whether the services were exported, the Tribunal considered a pending case and concluded tentatively that the services were exported based on the location of the service provider.

In conclusion, the Tribunal waived the pre-deposit of dues and stayed the collection of such dues during the appeal process, indicating a favorable decision for the appellants based on the arguments presented and the interpretation of the agreements with "Visa" and "Mastercard."