9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (2) TMI 949 - AT - Service TaxBusiness Auxiliary Services - appellants are engaged in providing services to the State Government Department such as Department of Mines & Geology (DMG) and Commercial Tax Department - exempt services or not - Held that - The similar issue is already decided in case of Mateshwari Indrani Contractors Pvt. Ltd. 2018 (6) TMI 665 - CESTAT NEW DELHI . All the issues, which are being contested in these appeals have been decided in favour of the appellants by this Tribunal. The show cause notice does not whispers the category under which the services are to be qualified, post 1.6.2012. On the other hand, these are also statutory duties levied by the Government and accordingly, amended by the notification no.25/2012-ST dated 30.06.2012 - such collection of taxes and statutory levies by the Appellant on behalf of government/ statutory authorities is exempt from payment of Service Tax. Demand set aside - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Vagueness and violation of principles of natural justice in the Show Cause Notices (SCNs). 2. Classification of services under "Business Auxiliary Services" (BAS). 3. Applicability of Section 65 and Section 66 post 1st July 2012. 4. Collection of royalty/toll on behalf of DMG/RIDCOR. 5. Definition and applicability of "commission agent". 6. Exemption under Notification No. 13/2004-ST. 7. Sovereign and statutory activities not chargeable to Service Tax. 8. Time-barred demand and imposition of penalties. Detailed Analysis: 1. Vagueness and Violation of Principles of Natural Justice in the SCNs: The appellants argued that the SCNs were vague and violated principles of natural justice. They contended that the SCNs failed to clearly specify the legal provisions and the exact liability, thus denying them a fair opportunity to defend their case. The SCNs did not point out the exact sub-clause under which the demand was sought, making the allegations unclear and non-specific. The Tribunal agreed with the appellants, emphasizing that a show cause notice must clearly indicate the basis of liability to provide the noticee an opportunity to contest the assertion and submit a defense. 2. Classification of Services under "Business Auxiliary Services" (BAS): The appellants argued that their activities did not fall under BAS as defined under Section 65(105)(zzb) read with Section 65(19) of the Finance Act. They highlighted that the SCNs failed to specify the exact sub-clause under which the services were classified as BAS. The Tribunal found that the SCNs were indeed vague and did not fulfill the requirements of natural justice, thus invalidating the classification under BAS. 3. Applicability of Section 65 and Section 66 Post 1st July 2012: The appellants contended that post 1st July 2012, the provisions of Section 65 and Section 66 were not applicable as per the Finance Act, 2012, and subsequent notifications. They argued that the SCNs and impugned orders failed to address the changes in the legal provisions post 1st July 2012. The Tribunal agreed with the appellants, noting that the SCNs did not specify how the activities were taxable under the new provisions. 4. Collection of Royalty/Toll on Behalf of DMG/RIDCOR: The appellants argued that they collected royalty/toll in their own right and not on behalf of DMG/RIDCOR. They highlighted that they had acquired the right to collect royalty/toll through agreements and bore the risk of loss or profit from the collection. The Tribunal found that the appellants collected royalty/toll in exercise of their own right and not as agents of DMG/RIDCOR, thus invalidating the basis of the impugned orders. 5. Definition and Applicability of "Commission Agent": The appellants argued that their activities did not qualify as those of a commission agent under Section 65(19) of the Finance Act. They highlighted that the alleged service recipients (DMG/RIDCOR) did not sell goods or provide services in relation to which the appellants collected royalty/toll. The Tribunal agreed, noting that the activities did not qualify as those of a commission agent and thus could not be classified under BAS. 6. Exemption under Notification No. 13/2004-ST: The appellants argued that their activities were exempt under Notification No. 13/2004-ST, which exempts services provided to the Government in relation to the collection of duties or taxes. They contended that the collection of royalty/toll was in nature of tax and thus exempt. The Tribunal agreed, finding that the collection of such statutory levies was exempt from Service Tax under the notification. 7. Sovereign and Statutory Activities Not Chargeable to Service Tax: The appellants argued that their activities were sovereign and statutory in nature and thus not chargeable to Service Tax. They relied on various judicial decisions and circulars supporting their contention. The Tribunal agreed, noting that the activities were indeed sovereign and statutory, and thus not subject to Service Tax. 8. Time-Barred Demand and Imposition of Penalties: The appellants argued that the demand was time-barred as there was no suppression of facts and they were under a bona fide belief that they were not liable to pay Service Tax. They contended that the extended period of limitation could not be invoked, and no penalties were imposable. The Tribunal agreed, finding that the demands were indeed time-barred and no penalties could be imposed. Conclusion: The Tribunal set aside the impugned orders and allowed the appeals with consequential relief to the appellants, agreeing with their contentions on all issues.
|
