2023 (5) TMI 605 - AT - Service Tax

Levy of Service Tax - Business Auxiliary Service - liability for the period prior to 01.07.2003 - time limitation - levy of interest and penalty. Whether the appellant is liable to pay service tax under Section 65 (19) of the Finance Act, 1994 as Business Auxiliary Service during the impugned period or not? - HELD THAT - The appellant has affected the sales on behalf of third party and received commission which is covered as commission agent in terms of the Notification No.13/2003-ST dated 20.06.2003 - following the decision of Brindco Sales Ltd. 2015 (9) TMI 1280 - CESTAT NEW DELHI , it is held that the appellant was not liable to pay service tax under the category of Business Auxiliary Service as commission agent during the period 01.07.2003 to 08.07.2004 - issue is answered in favour of the appellant. Whether for the period prior to 01.07.2003, the appellant was liable to pay service tax under Business Auxiliary Service or not? - HELD THAT - It is fact on record that prior to 01.07.2003, Business Auxiliary Service was not in the statutory book, therefore, the question of demanding service tax for the period prior to 01.07.2003, does not arise - for the period prior to 01.07.2003, the appellant was not liable to pay service tax. Therefore, the said issue is answered in favour of the appellant. Whether the demands raised against the appellant are barred by limitation or not? - HELD THAT - It is fact on record that the audit took place on 2nd February, 2005 and 6th October, 2005 for the period 2003- 04 and 2004-05 respectively (impugned period) and a show-cause notice has been issued to the appellant on 26.09.2008 as it is not a case of suppression of facts by the appellant and all the facts are in the knowledge of the Department, therefore, we hold that all the demands are barred by limitation as the show-cause notice has been issued by invoking extended period of limitation - the said issue is also answered in favour of the appellant. Whether in the facts and circumstances of the case, the appellant is liable to pay interest on the impugned demand and is to be penalized or not? - HELD THAT - As the demand is not sustainable against the appellant, therefore, the appellant is not required to pay any interest and no penalties were imposable on the appellant - no service tax is payable by the appellant for the impugned period against the impugned show-cause notice. Therefore, no interest and penalty is leviable on the appellant. Appeal allowed.

Issues Involved:
1. Liability to pay service tax under "Business Auxiliary Service" during the impugned period.
2. Liability to pay service tax prior to 01.07.2003.
3. Whether the demands raised are barred by limitation.
4. Liability to pay interest and penalties on the impugned demand.

Issue No. (a): Liability to Pay Service Tax under "Business Auxiliary Service"

The Tribunal examined whether the appellant was liable to pay service tax under Section 65 (19) of the Finance Act, 1994, for activities as a commission agent during the period 2003-04 and 2004-05. The Tribunal found that "Business Auxiliary Service" was introduced w.e.f. 01.07.2003, and the appellant's activities fell under this category. However, Notification No.13/2003-ST dated 20.06.2003 exempted commission agents from service tax. The Tribunal cited the case of Brindco Sales Ltd., where it was held that the appellant's activities as a commission agent were exempt under the said notification. Therefore, the Tribunal concluded that the appellant was not liable to pay service tax from 01.07.2003 to 08.07.2004.

Issue No. (b): Liability to Pay Service Tax Prior to 01.07.2003

The Tribunal noted that "Business Auxiliary Service" was not in the statutory book prior to 01.07.2003. Hence, the appellant was not liable to pay service tax for that period. The Tribunal also observed that the adjudicating authority failed to consider the records provided by the appellant, which showed no service tax was payable before 01.07.2003.

Issue No. (c): Whether the Demands Are Barred by Limitation

The Tribunal found that audits for the impugned periods were conducted in February and October 2005, and the show-cause notice was issued on 26.09.2008. Since all relevant facts were in the knowledge of the Department and there was no suppression of facts by the appellant, the Tribunal held that the demands were barred by limitation as the extended period of limitation was incorrectly invoked.

Issue No. (d): Liability to Pay Interest and Penalties

Given that the demands were not sustainable, the Tribunal concluded that the appellant was not required to pay any interest or penalties. The Tribunal set aside the impugned order and allowed the appeal with consequential relief to the appellant.

Conclusion:

The Tribunal held that no service tax was payable by the appellant for the impugned period, and thus, no interest or penalties were leviable. The impugned order was set aside, and the appeal was allowed with consequential relief.

← Previous Next →