2024 (3) TMI 561 - AT - Service Tax

Levy of service tax - Management Consultants Service - period from 2001-2002 to 2004-05 - royalty for use of their trade mark by various organisations - Business Auxiliary Service - period from 09.07.2004 to 31.03.2006 - Extended period of limitation. Whether the services rendered by the appellants are taxable under Business Auxiliary Service as held by the Commissioner? - HELD THAT - The appellant besides allowing use of their trademark and logo, carried out a host of activities which indicate that they have rendered services which squarely fall under the category of Business Auxiliary Service particularly promotion or marketing or sale of goods to their clients - There are force in the contention of the learned Authorised Representative for the Revenue that the judgments of this Tribunal in both the cases viz., HERO HONDA MOTORS LTD VERSUS COMMISSIONER OF SERVICE TAX, NEW DELHI 2012 (4) TMI 198 - CESTAT, NEW DELHI and TATA MOTORS LIMITED VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-II 2017 (5) TMI 462 - CESTAT MUMBAI are inapplicable to the facts of the present case in as much as in those cases royalty fees was collected by the appellants therein which was considered by the Tribunal as Intellectual Property Service' which is not so in the case of present case where the service charges are clearly reflected in the relevant agreement as promotional fees in consideration of various promotional activities undertaken by the appellant. Whether the commission received from the foreign entities for sale of goods in domestic market is leviable to Service Tax? - HELD THAT - It is covered by the judgment of the Larger Bench in the M/S. ARCELOR MITTAL STAINLESS (I) P. LTD (NOW KNOWN AS M/S. ARCELOR MITTAL DISTRIBUTION SOLUTIONS INDIA PRIVATE LIMITED) VERSUS COMMISSIONER SERVICE TAX MUMBAI-II 2023 (8) TMI 107 - CESTAT MUMBAI-LB , hence the demand confirmed by the Commissioner cannot be sustained. Whether the demands issued to the appellant by Jamshedpur Commissionerate on the same set of facts is barred by limitation? - HELD THAT - When the department is not sure about the category of taxable service under which activities undertaken by the appellant in providing services to the clients would fall, allegation of mis-statement, suppression of facts, cannot be sustained. Besides, it is found that the Commissioner by invoking Section 80 in setting aside the penalty categorically held that the issue involved in the present case is a matter of interpretation of law with regard to classification and taxability of the service and further observed that the very fact that the same activity of the assessee has been proposed to be classifiable under two different categories of taxable services as per show-cause notice issued by different formations, it provides reasonable cause for non-payment of Service Tax and penal proceedings dropped. Therefore, invoking larger period of limitation in confirming the demand cannot be sustained. The impugned order is modified and the demand is confirmed only for the normal period of limitation relating to Business Auxiliary Service. The matter is remanded to the adjudicating authority for computing demand for the normal period. Appeal allowed by way of remand.

Summary

Issues Involved:
1. Taxability of services under 'Business Auxiliary Service'.
2. Service tax on commission received from foreign entities.
3. Limitation period for issuing demand notices.

Summary:

1. Taxability of Services under 'Business Auxiliary Service':
The appellants entered into agreements with M/s. Savitha Chemicals Ltd. and M/s. Castrol Pvt. Ltd. to promote, market, and sell their products. The Commissioner issued show-cause notices alleging that the services rendered fell under 'Management Consultants Service' and 'Business Auxiliary Service'. The Tribunal found that the appellants carried out various promotional activities, which fall under 'Business Auxiliary Service'. The judgments in Hero Honda Motors Ltd. and Tata Motors Ltd. were deemed inapplicable as the appellants did not collect royalty fees but received promotional fees.

2. Service Tax on Commission Received from Foreign Entities:
The Tribunal held that the issue of chargeability of service tax on commissions received from overseas entities for the sale of goods is covered by the Larger Bench decision in M/s. Arcelor Mittal Stainless Steel Ltd., and thus, the demand confirmed by the Commissioner cannot be sustained.

3. Limitation Period for Issuing Demand Notices:
The Tribunal found merit in the appellant's contention regarding the overlapping demands issued by Jamshedpur and Bangalore Commissionerates on the same set of facts. The Tribunal held that when the department is unsure about the category of taxable service, the allegation of mis-statement or suppression of facts cannot be sustained. The Commissioner invoked Section 80 to set aside the penalty, acknowledging that the issue involved was a matter of interpretation of law regarding classification and taxability. Therefore, invoking the larger period of limitation was deemed unsustainable. The Tribunal modified the impugned order, confirming the demand only for the normal period of limitation relating to 'Business Auxiliary Service' and remanded the matter to the adjudicating authority for computing the demand for the normal period.

Order Pronounced in Open Court on 08/03/2024.