2018 (10) TMI 31 - AT - Service Tax

Classification of services - business of marketing, sourcing, making available various kind of loans on behalf of various banks such as ICICI, HDFC, City Bank, Standard Chartered Banks and similar Financial & Banking Institutions - whether classified as Business Auxiliary Services or as Franchise Services? - 25/2004 dated 10th September, 2004 - invocation of extended period of limitation. Held that - In the present case also, the demand is for the period w.e.f. July 2003 to December 2004. The Show Cause Notice was issued on 28.09.2007. Once there was an apparent acknowledged confusion about the impugned activity, non-discharge of the liability thereof cannot be alleged as an act of suppression of fact with an intent to evade tax. Resultantly, the Department was not entitled to invoke the extended period of limitation. Demand hit by limitation of time - appeal allowed - decided in favor of appellant.

Issues:
1. Classification of services provided by the appellants as Business Auxiliary Services.
2. Allegation of non-discharge of liability and invocation of extended period of limitation.
3. Applicability of Notification No. 25/2004 dated 10th September, 2004.
4. Interpretation of various decisions by CESTAT on similar issues.
5. Sustainability of the impugned demand.

Analysis:

Classification of Services:
The appellants were engaged in marketing, sourcing, and making various loans available on behalf of banks, receiving commissions for these services. The Department alleged that they were providing business auxiliary services under Section 65 (105) (zzb) of the Finance Act, 1994. The dispute arose regarding the classification of these activities, with some decisions classifying them as business support services and others as business auxiliary services. The confusion was clarified by Notification No. 25/2004 dated 10th September, 2004.

Allegation of Non-Discharge of Liability:
The Department issued a show cause notice proposing a demand for non-payment of service tax. The appellants argued that due to the confusion in the classification of their activities, the non-discharge of liability cannot be considered as an act of suppression of facts to evade tax. They contended that the demand for the period from July 2003 to December 2004 was barred by the limitation period. The Tribunal held that the demand was hit by the period of limitation and set aside the order under challenge.

Applicability of Notification No. 25/2004:
The Tribunal considered the impact of Notification No. 25/2004 dated 10th September, 2004, in clarifying the confusion surrounding the classification of services provided by the appellants. This notification played a crucial role in determining the correct categorization of the appellants' activities.

Interpretation of Various Decisions:
The Tribunal referenced various decisions by CESTAT on similar issues to support its conclusion. It highlighted cases such as S.R. Kalyanakrishnan vs. Commissioner of C. Ex., Masicon Financial Services Pvt. Ltd. vs. Commr. of C. Ex., and Credentials vs. Commissioner of Central Excise to emphasize the need for a clear understanding of the legal precedents in such matters.

Sustainability of the Impugned Demand:
The Tribunal found that the demand raised by the Department was not sustainable due to the confusion in the classification of services provided by the appellants and the lack of intent to evade tax. It held that the impugned demand was barred by the period of limitation, thereby allowing the appeal and setting aside the order under challenge.

In conclusion, the Tribunal ruled in favor of the appellants, emphasizing the importance of clarity in the classification of services for tax purposes and the need to consider the period of limitation in such cases.

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