2014 (8) TMI 889 - AT - Service Tax

Business Auxiliary Service - corporate agent for procuring or soliciting insurance business - it is contended that the service tax liability has been discharged by Oriental Insurance Co. Ltd. on reverse charge basis and, therefore, the appellant is not liable to pay service tax - Held that - It is seen that the appellant is only canvassing/promoting business of insurance company and, therefore, the said activity, prima facie, comes within the purview of Business Auxiliary Services and the liability to pay service tax is on the service provider and not on the recipient of service. Therefore, even if the service tax liability has been discharged by the recipient of the service, that cannot compensate for the payment required to be made by the appellant nor does it obliterate the liability to pay service tax by the appellant. Therefore, the appellant has not made out a prima facie case for grant of stay - Partial stay granted.

Summary

Issues:
Confirmation of service tax demand on the appellant under 'Business Auxiliary Service' category, liability to pay service tax, applicability of reverse charge mechanism, grant of stay petition.

Analysis:
The judgment by the Appellate Tribunal CESTAT MUMBAI involved a case where the appellant, a bank, contested the confirmation of service tax demand on them under the 'Business Auxiliary Service' category. The lower appellate authority had upheld the demand, along with interest and penalties. The appellant argued that they were authorized to act as a corporate agent for procuring insurance business and that the service tax liability had been discharged by the insurance company on a reverse charge basis, hence they should not be liable to pay service tax.

The Revenue, represented by the Additional Commissioner, contended that the appellant's activity of referring people to the insurance company constituted canvassing/promotion falling under 'Business Auxiliary Services,' making the appellant liable for service tax payment. The Revenue emphasized that even if the insurance company had paid the service tax, the appellant's liability remained intact.

After considering the arguments from both sides, the Tribunal observed that the appellant's role was indeed in canvassing/promoting the insurance company's business, falling under 'Business Auxiliary Services.' The Tribunal clarified that the liability to pay service tax lies with the service provider, in this case, the appellant, and not the recipient of the service. Therefore, the Tribunal concluded that the appellant failed to establish a prima facie case for the grant of a stay.

Consequently, the Tribunal directed the appellant to make a pre-deposit of the confirmed service tax demand within eight weeks. Upon compliance with this pre-deposit, the balance of dues, including interest and penalties, would be waived, and recovery stayed during the appeal's pendency. This decision highlighted the importance of understanding the nature of services provided and the corresponding liability for service tax payment, even in cases where the recipient may have already discharged the tax liability under the reverse charge mechanism.