2015 (9) TMI 831 - Commissioner - Service Tax

Business Auxiliary Services - trading activity or commission agent - concept of multilevel marketing - allegation that the appellant is selling various types of products of M/s. FSL under the concept of multilevel marketing termed as Right Concept Marketing , as a distributor through their dedicated network of distributors called her down-liners and received various kind of incentives, commission etc. in a pre-defined manner depending on kit purchases and repurchases by her down-liners. - Held that - the service provided by the appellant falls within the ambit of Business Auxiliary Service as defined in Section 65(19) of the Act and is liable to Service Tax under Section 68(1) of the Act read with Rule 6 of the Service Tax Rules, 1994. Further, I find from the records that the appellant has also received various kinds of incentives, commission etc. on account of promotion and marketing of their products by her down-liners and there is no evidence on record to establish that sales tax has duly been paid on the full sale value of such incentives and commissions. Thus the, adjudicating authority has rightly held that the activities carried out by the appellants are covered under the category of Business Auxiliary Services and thus are taxable. - Decided against the assessee. Extended period of limitation - Held that - they neither supplied any data regarding providing of such services to the department, nor they fulfilled statutory obligations and this act of appellants was entirely unwarranted which resulted into gross violation of law governing the issue as well as Revenue loss to the Government exchequer. Therefore, suppression with intent to evade Service Tax is clearly spelt out. - Demand of service tax with penalty confirmed - Decided against the assessee.

Summary

Issues Involved:
1. Classification of services as 'Business Auxiliary Services'.
2. Relationship between the appellant and M/s. FSL.
3. Eligibility for small scale exemption.
4. Invocation of the extended period for demand.
5. Imposition of penalties under Sections 77 and 78.
6. Applicability of Section 80 for waiver of penalties.

Issue-wise Detailed Analysis:

1. Classification of Services as 'Business Auxiliary Services':
The appellant, working as a distributor for M/s. FSL, received commissions for marketing and selling products. The adjudicating authority classified these services under 'Business Auxiliary Services' (BAS) as defined in Section 65(19) of the Finance Act, 1994, making them liable for Service Tax. The appellant argued that their relationship with M/s. FSL was that of a buyer and seller, not a service provider and recipient, and thus should not be classified under BAS. However, the judgment found that the appellant's activities of promoting and marketing M/s. FSL's products and receiving commissions for the same clearly fell within the definition of BAS, making them liable for Service Tax.

2. Relationship Between the Appellant and M/s. FSL:
The appellant contended that the relationship with M/s. FSL was purely transactional (buyer and seller) and not that of a service provider and recipient. The judgment, however, determined that the appellant was indeed promoting and marketing M/s. FSL's products through a network of distributors, thus acting as a service provider under BAS. The commissions received were for services rendered in promoting and marketing the products, establishing a service provider-client relationship.

3. Eligibility for Small Scale Exemption:
The appellant claimed eligibility for small scale exemption under Notification No. 6/2005-ST. The judgment reviewed the commission received during various financial years and found that for the years 2009-10 and 2010-11, the total commission was below the exemption limit, making the appellant eligible for small scale exemption for these periods. Consequently, the Service Tax demand for these periods was not sustainable. However, for the financial year 2008-09, the commission exceeded the exemption limit, and the demand for this period was upheld.

4. Invocation of the Extended Period for Demand:
The appellant argued against the invocation of the extended period, claiming no willful misstatement or suppression of facts. The judgment rejected this argument, citing the appellant's failure to register and file returns as indicative of intent to evade tax. The extended period was deemed applicable due to suppression of facts and deliberate intent to evade Service Tax.

5. Imposition of Penalties Under Sections 77 and 78:
The adjudicating authority imposed penalties under Sections 77 and 78 of the Act. The judgment upheld these penalties, noting that the appellant's actions constituted suppression with intent to evade tax. The penalty under Section 78 was adjusted to match the reduced Service Tax demand for the period 2008-09, while the penalty under Section 77 was upheld for contravention of Service Tax laws.

6. Applicability of Section 80 for Waiver of Penalties:
The appellant sought relief under Section 80, claiming a bona fide belief that Service Tax was not applicable. The judgment found no merit in this claim, emphasizing that ignorance of law is not an excuse in the self-assessment regime. Thus, the benefit of Section 80 was denied, and the penalties were upheld.

Conclusion:
The appeal was partially allowed. The Service Tax demand for the periods 2009-10 and 2010-11 was vacated due to eligibility for small scale exemption. The demand for 2008-09 was upheld, along with corresponding penalties under Sections 77 and 78. The extended period for demand was justified, and the plea for waiver of penalties under Section 80 was denied.