2016 (1) TMI 973 - AT - Service Tax

Business Auxiliary service or not - activity of collection/dispatch of Speed Post/Export Delivery Letter etc. on behalf of the Post Office - Revenue neutral exercise - Held that - Before going into the merit whether the services is taxable or otherwise and also on the limitation, we find that the fact is not under dispute that the services provided by the assessee is at the most considered as input services for the postal department. The postal department is admittedly paying the service tax on the total value of the services which obviously includes service value of the assessee. In this situation, if service tax is paid by the assessee, the assessee s services is an input service for the postal department and postal department is entitled for Cenvat credit, thus in our view the present case is of Revenue neutral as the postal department is entitled for CENVAT credit of the service tax if at all payable by the assessee. This Tribunal, time and again held that in case of revenue neutral the demand does not exist. In view of the various judgments, it is clear that if service tax is paid by the assessee, same shall be available as Cenvat credit to the postal department and to that extent net liability of service tax shall stand reduced while paying the service tax by the postal department. Therefore, it is an exercise of revenue neutral for this reason demand does not exist. We, therefore, drop the demand on the point of revenue neutrality without addressing the issues of taxability of service tax and limitation. - Decided in favor of assessee.

Issues involved:
1. Whether the service provided by the assessee as an intermediary for the postal department is taxable under section 65 of the Finance Act, 1994.
2. Whether the demand for service tax on the assessee is valid.
3. Whether the demand is barred by limitation.

Analysis:

Issue 1: Taxability of Service Provided by the Assessee
The case revolves around the service provided by the assessee as an intermediary for the postal department. The assessee acts as an outsourcing agent for the postal authorities, facilitating services such as collection and dispatch of mail on behalf of the Post Office. The dispute arises from whether the service provided by the assessee falls under the purview of Business Auxiliary Services and is thus taxable under the Finance Act, 1994. The appellate tribunal noted that the postal department pays service tax on the total value of services provided, which includes the service charges of the assessee. The tribunal concluded that the services provided by the assessee can be considered as input services for the postal department, making the case revenue neutral. This means that if the assessee pays service tax, the postal department can avail Cenvat credit, resulting in no additional tax liability. Therefore, the tribunal held that the demand for service tax on the assessee was dropped based on the principle of revenue neutrality.

Issue 2: Validity of Demand for Service Tax
The assessee argued that since the postal department pays service tax on the total value of services provided, imposing a separate service tax on the assessee would lead to double taxation, which is impermissible. The tribunal referred to various judgments, including Popular Vehicles & Services Ltd., Cochin Port Trust, and DNS Contractor cases, to support the principle that if service tax is already paid on the full value of services, there should be no additional tax liability on the intermediary. The tribunal emphasized that the concept of revenue neutrality is crucial in determining the validity of the demand for service tax. As the demand in this case was considered revenue neutral due to the payment of service tax by the postal department, the tribunal ruled in favor of the assessee and dropped the demand.

Issue 3: Limitation of Demand
Regarding the issue of limitation, the tribunal noted that no suppression, misdeclaration, or fraud was established against the assessee. The Commissioner (Appeals) had dropped part of the demand based on limitation but upheld the demand for the normal period. However, the tribunal did not delve into the limitation aspect as it found the case to be revenue neutral, thereby rendering the question of limitation moot. The tribunal focused on the revenue neutrality aspect and concluded that the demand did not exist due to the availability of Cenvat credit to the postal department if the assessee paid service tax.

In conclusion, the tribunal allowed the assessee's appeal and dismissed the Revenue's appeal, emphasizing the concept of revenue neutrality and the availability of Cenvat credit to the postal department. The judgment highlighted the importance of avoiding double taxation and ensuring a fair and neutral tax regime in the context of service tax liabilities.

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