2020 (2) TMI 1201 - AT - Service Tax

Business Auxiliary Service - selling space on ships - amounts received for acting as an agent of the principal as they have been assisting the principal in their business - Penalties - HELD THAT - A plain reading of the agreement which the appellant had entered into with the shipping line shows that this is not a case of agreement on a principal to principal basis but the appellant is appointed as an agent by the shipping lines for rendering the service of selling their space on their ships. This clearly falls under the category of Business Auxillary Service - the appellant is liable to pay service tax on Business Auxiliary Services. Penalties - HELD THAT - The penalties imposed by the lower authority have been set aside by the First Appellate Authority and the Revenue is not in appeal against such setting aside of the penalties. Appeal dismissed - decided against assessee.

Summary

Issues:
1. Whether service tax is leviable on the appellant for acting as an agent of the principal in selling space on ships.
2. Whether the appellant's activity falls under the category of "Business Auxiliary Service."
3. Whether penalties imposed under sections 77 and 78 are justified.

Analysis:
Issue 1: The appellant entered into an agreement with a shipping line to act as their agent for selling space on ships. The appellant was allowed to add a profit margin on the sales tariff provided by the principal. The original authority demanded service tax from the appellant for assisting the principal in their business. The First Appellate Authority confirmed the demand, leading to the present appeal.

Issue 2: The appellant argued that similar cases have ruled in favor of no service tax on profits from selling space on ships. The Revenue contended that the appellant was appointed as an agent by the shipping line, justifying service tax under "Business Auxiliary Service." The Tribunal analyzed the agreement and concluded that the appellant's role as an agent for selling space on ships falls under "Business Auxiliary Service" as defined in the Finance Act, 1994. Therefore, the appellant is liable to pay service tax.

Issue 3: The penalties imposed under sections 77 and 78 were set aside by the First Appellate Authority, and the Revenue did not appeal against this decision. The Tribunal upheld the setting aside of penalties and focused on the service tax liability of the appellant. Consequently, the appeal was rejected, and the impugned order was upheld.

In conclusion, the Tribunal determined that the appellant's activity of selling space on ships as an agent falls under "Business Auxiliary Service," making them liable to pay service tax. The penalties under sections 77 and 78 were set aside, and the appeal was rejected, upholding the original demand for service tax.