2015 (6) TMI 49 - AT - Service Tax

Waiver of pre deposit - business auxiliary service - distributor or marketing agent of M/s Amway India Enterprises Pvt. Ltd. - Held that - While prima facie the service rendered by the appellant clearly fell under the scope of business auxiliary service, it is seen that CBEC vide Circular No. 80/10/2004-ST dated 17.9.2004 stated that while the scope of the existing taxable service (viz. business auxiliary service) has been expanded to include activities relating to procurement of inputs, production of goods (not amounting to manufacture), provisions of services on behalf of a client, the tax is leviable only when the service provider is a commercial concern. - circular further clarify that service tax is however being restricted to only those cases where the service provider is a factory governed by the Factory Act, 1948, the company established by or under the Companies Act, 1956 or corporation or a body corporate established by or under any law, partnership firm, societies registered under Societies Registration Act, 1860 or under any law and any cooperative society established by or under any law - appellant had a reasonable basis to presume that they being an individual would not be covered for the purpose of levy of service tax. We must clarify that Board s circulars do not have any legal enforceability and are mere administrative interpretations of law but when the policy making body CBEC itself considered individuals to be outside the purview of taxability under business auxiliary service, it cannot be sustainably alleged that an individual was guilty of suppression/mis-statement if he thought alike. Thus, prima facie, the entire demand is hit by time bar. - Stay granted.

Summary

Issues:
1. Appellant's liability for service tax demand as a distributor or marketing agent.
2. Applicability of service tax on the appellant as an individual.
3. Time limitation for raising the demand.

Issue 1: Appellant's liability for service tax demand as a distributor or marketing agent:
The appellant filed a stay application and appeal against an order confirming a service tax demand for providing business auxiliary service as a distributor or marketing agent of a company. The demand related to the period 2004-2005 to 2008-2009. The appellant contended that the demand for 2007-2008 and 2008-2009 was nil, and the entire demand pertained to 2004-2005 to 2006-2007, which exceeded the one-year period from the date of the Show Cause Notice. The appellant argued that as an individual, there was no wilful mis-statement or suppression on their part since only commercial concerns were required to pay service tax during the relevant period.

Issue 2: Applicability of service tax on the appellant as an individual:
The Tribunal analyzed the appellant's contentions and considered that the service provided by the appellant fell under the scope of business auxiliary service. However, a circular issued by the Central Board of Excise and Customs (CBEC) clarified that service tax on business auxiliary service was leviable only when the service provider was a commercial concern. The circular specified categories like factories, companies, partnerships, societies, and cooperative societies as liable for service tax. The Tribunal noted that CBEC's circulars are administrative interpretations and not legally binding, but when the policy-making body itself excluded individuals from taxability under business auxiliary service, it was reasonable for the appellant to presume they were not covered. Thus, the Tribunal found that the appellant, being an individual, had a reasonable basis to believe they were not liable for service tax, and the demand was hit by the time limitation.

Issue 3: Time limitation for raising the demand:
The Tribunal observed that the demand raised beyond the one-year period from the Show Cause Notice was prima facie hit by time bar. Considering the CBEC circular excluding individuals from the purview of taxability under business auxiliary service, the Tribunal granted waiver from pre-deposit of the adjudicated liabilities and stayed the recovery during the appeal's pendency. This decision was based on the understanding that the appellant's presumption of not being liable for service tax as an individual was reasonable given the CBEC's stance at the time.

In conclusion, the Tribunal granted relief to the appellant by waiving the pre-deposit of the adjudicated liabilities and staying the recovery during the appeal process, as the demand for service tax was found to be time-barred due to the appellant's reasonable belief, supported by the CBEC circular, that as an individual, they were not liable for service tax under the business auxiliary service category.