2014 (12) TMI 287 - AT - Service Tax

Waiver of pre depposit - Business Auxiliary Service - Sale/purchase of a used cars - Held that - When the appellant provided a space to keep the car after cleaning it and also getting it valued and after consulting with the seller, fix price and display for sale and subsequently, when a buyer is found, they would arrange registration and transfer of ownership, etc. There is no doubt that the appellant was rendering service to both of them. When the car is sold, they act as a commission agent in selling activity for the seller and act as a commission agent for buying activity for buyer. Prima facie, therefore, we find that the appellant may not have a case on merits. - Partial stay granted.

Issues involved:
1. Whether the appellant's activity qualifies as 'Business Auxiliary Service' for the purpose of service tax liability.
2. Whether the appellant can be considered a 'Commission Agent' based on the activities performed in relation to the sale and purchase of used cars.

Issue 1: Activity qualification as 'Business Auxiliary Service'
The appellant, engaged in facilitating the sale and purchase of used cars, faced a service tax demand of Rs. 1,53,62,895 for providing 'Business Auxiliary Service' to sellers and buyers during 2006-07 to 2010-11. The appellant's role involved various steps from receiving and verifying documents to arranging insurance and registration for the new owner. The original authority determined that the appellant's services went beyond providing a mere platform, as they collected commissions from both sellers and buyers. The definition of 'Business Auxiliary Service' includes services incidental to activities like billing, collection of payments, and commission agent services. The appellant contended that their activity did not fall under this definition as they were not acting as a commission agent but providing a platform for transactions. However, the original authority considered the detailed nature of the appellant's services and upheld the service tax demand, leading to the appeal.

Issue 2: Consideration of the appellant as a 'Commission Agent'
The Revenue argued that the appellant could be classified as a 'Commission Agent' based on the services provided. The definition of 'Commission Agent' involves acting on behalf of another person in causing the sale or purchase of goods or services. The appellant's activities, as described in the appeal memo, included facilitating the entire process from valuation to registration and transfer of ownership, acting as a middleman between sellers and buyers. Although the appellant disputed being a commission agent, the Tribunal found that their role in the transactions aligned with the definition, as they facilitated the sale as well as the purchase of used cars, essentially acting as a commission agent for both parties. The Tribunal acknowledged the debatable nature of the issue and the complexity surrounding the interpretation of 'commission agent' in this context. Consequently, the Tribunal waived the requirement for a pre-deposit of the balance dues, subject to the appellant depositing Rs. 12,00,000 within a specified timeline.

In conclusion, the Tribunal upheld the service tax demand on the appellant for providing 'Business Auxiliary Service' in the sale and purchase of used cars. Additionally, the Tribunal considered the appellant's role akin to that of a 'Commission Agent' based on the services rendered, despite the appellant's contention otherwise. The decision highlighted the nuanced interpretation of legal definitions and the need for a deeper understanding of the trade practices involved in determining tax liabilities.

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