2013 (9) TMI 469 - AT - Service Tax

Business Auxiliary Service department s contended that the service rendered by the appellant was liable to service tax under the category of Clearing & Forwarding Agents - Held that - As per the terms of the agreement, the appellant was acting as a Del Credere Agent and not as a Clearing and Forwarding Agent - Whether activity of Del Credere agent can be taxed retrospectively - The activity cannot be held liable to service tax prior to the enactment - as decided in CST, BANGALORE V/s SREENIDHI POLYMERS (P) LTD. (2010 (3) TMI 333 - KARNATAKA HIGH COURT) - The period of dispute in the present case is 1999-2000 & 2000-2001 - activity of Del Credere Agent was brought under the service tax net with effect from 16/06/2005 under the category of Business Auxiliary Service appeal decided in the favour of the assessee.

Summary

Issues:
Interpretation of service tax liability for a "Del Credere Agent" service provided by the appellant to the principal manufacturer for the period 1999-2001.

Analysis:
The appeal before the Appellate Tribunal CESTAT Mumbai was against the Order-in-Appeal passed by the Commissioner of Central Excise (Appeals), Mumbai. The appellant, a company based in Mumbai, acted as a "Del Credere Agent" for a principal manufacturer, earning commission on consignments dispatched to buyers. The department contended that the service provided was akin to "Clearing & Forwarding Agents" service and demanded service tax for the period 1999-2001, along with interest and penalties. The lower appellate authority rejected the appellant's appeal, leading to the current appeal.

The appellant argued that their role as a "Del Credere Agent" involved promoting and facilitating sales of products within a specific territory, handling collection of sale proceeds, and ensuring payment to the principal manufacturer if buyers defaulted. They emphasized that they were not a "Clearing and Forwarding Agent" as claimed by the department. Citing a Tribunal decision and other similar cases, the appellant contended that a Del Credere Agent's activity falls under "Business Auxiliary Services" for service tax purposes, effective from 16/06/2005.

The Revenue's representative agreed with the appellant's interpretation, acknowledging that the issue was covered by previous decisions cited by the appellant. The Tribunal carefully considered the arguments from both sides and noted that the period of dispute was 1999-2001, predating the inclusion of "Del Credere Agent" services under the service tax net as "Business Auxiliary Services" from 16/06/2005. Relying on the decisions of the Hon'ble High Court of Karnataka and previous Tribunal rulings, the Tribunal allowed the appeal, holding that the service provided by the appellant could not be held liable to service tax for the period in question.

In conclusion, the Tribunal's judgment clarified the service tax liability for a "Del Credere Agent" service provided by the appellant, emphasizing the specific categorization of such services under the relevant tax laws during the period in dispute. The decision highlighted the importance of legal precedents and statutory provisions in determining tax liabilities and upheld the appellant's argument based on the effective date of inclusion of such services under the service tax net.