2014 (1) TMI 508 - AT - Service Tax

Stay application - Authorised Service Station Services - Business Auxiliary Services - Held that - As per the said agreement apart from selling the vehicles of M/s. Ashok Leyland Ltd. in the areas specified in the agreement, the appellant is also required to undertake sales promotion activities for vehicles of M/s. Ashok Leyland Ltd. by way of advertisements and other promotional measures. They are also required to undertake after-sale services in respect of Ashok Leyland vehicles sold by them. The dealer is also required to attend to customer complaints with view to protecting the goodwill of Ashok Leyland - Thus, from the agreement it is evident that the appellant undertakes not only sale of the goods but also undertakes certain services such as sales promotion, after-sale service, advertising, etc. Business Auxiliary Service is defined in Section 65(19) of the Finance Act, 1994 and includes promotion or marketing or sale of goods produced or provided by or belonging to the client or provision of service on behalf of the client. Thus, the activities undertaken by the appellant prima facie comes under the category of Business Auxiliary Services and they are liable to discharge Service Tax on the consideration received in respect of this activity - prima facie appellant has not made out any case for complete waiver of the pre-deposit of the dues adjudged - Conditional stay granted.

Summary

Issues:
Service Tax liability on commission received, Centralized billing system, Business Auxiliary Services, Pre-deposit requirement, Applicability of case laws.

Analysis:
The case involves an appeal against an Order-in-Original passed by the Commissioner of Customs & Central Excise, Nagpur. The appellant, a registered service station, received commissions from Ashok Leyland and finance companies. The dispute arose as the appellant did not pay Service Tax on these activities, leading to a demand notice for Service Tax, interest, and penalties. The appellant contended that the commissions were inter-branch transfers and not liable for Service Tax. They argued that the trading profit earned did not fall under the purview of Service Tax. The appellant also claimed they were under a bona fide belief that no Service Tax was due. The Revenue, however, argued that the appellant failed to explain discrepancies in financial figures and had not paid Service Tax on commissions. The Tribunal examined the dealership agreement between the appellant and Ashok Leyland, which included sales promotion and after-sale services, falling under Business Auxiliary Services. The Tribunal found the appellant liable for Service Tax, as they failed to prove payment of tax on these activities. The Tribunal also dismissed the appellant's reliance on previous judgments involving only sale of goods, not services.

The Tribunal considered the principles for granting a stay or dispensing with pre-deposit, emphasizing the need to establish a prima facie case, balance of convenience, and safeguarding revenue interests. The appellant did not demonstrate financial hardship and failed to prove a complete waiver was warranted. Citing a High Court decision, the Tribunal directed the appellant to pre-deposit 50% of the Service Tax within eight weeks, with the balance waived upon compliance. The recovery of the remaining dues was stayed pending the appeal process.

In conclusion, the Tribunal upheld the Service Tax liability on the commission received by the appellant, rejecting arguments of inter-branch transfers and lack of Service Tax liability. The Tribunal emphasized the applicability of Business Auxiliary Services based on the dealership agreement terms. The Tribunal also highlighted the importance of pre-deposit requirements and the need to safeguard revenue interests in granting stays or waivers. The appellant was directed to comply with the pre-deposit condition to proceed with the appeal process effectively.