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TMI Blog2017 (9) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... n the first clause of the definition of support services of business or commerce. The scope of this service is not limited but very wide. In our view any service which support the operation of business and commerce of the client covers under the business support services, if it is not specified under the specific classification. As regard consideration, from the concession agreement, it can be seen that the consideration is either in the form of percentage of sale or if the total amount, as per the percentage does not meet to the minimum guaranteed amount then irrespective of percentage the fixed minimum guaranteed amount is charged by the appellant from the concessionaire. This further establish that the arrangement is not of sale-purchase of goods between concessionaire and the appellant but of service. Extended period of limitation - penalty - Held that: - before 1-6-2007 appellant neither declared their service nor filed any ST-3 returns declaring the service of Business Support Service, therefore department was completely kept in dark about the provision of service under the category of Business Support Service, therefore there is clear suppression of facts on the part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order, the appellant filed this appeal. 3. Shri S.S.Gupta, Ld. Chartered Accountant, appearing on behalf of the appellant made the following submissions: 3.1 The transaction entered between the appellant and the concessionaire is the purchase and sale of the goods and not of any provision of service. The appellant have also paid VAT on the entire amount of sale price realized from the ultimate customer. The Commissioner in the order observed that in the whole process of trading of goods, the appellant is acting as a cash collecting agent without bearing any responsibility or undertaking and activity. Therefore the services are taxable under the category of 'Business Support Services'. This contention is not correct as mere acting as a collecting agent cannot be classified as 'Business Support Servcies'. The appellant also relies upon the judgment in the case of M/s.Bharat Petroleum Corpn. Ltd. reported in 2014 (36) STR 433 (Tri-Mum) and M/s. Gujarat Narmada Valley Fertilizer Chemicals Ltd.- 2014-(18)-TMI-821 CESTAT. 3.2 The Commissioner's finding is also based on the contention that from 1/6/07 appellant paid service tax on the same acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. e) The order incorrectly concludes that the appellants are monitoring the quality of merchandise, range of products, sales staff, etc. The loyalty program, first citizen reward points, etc are carried out by the appellant in general for its own product as well as the product of the concessionaire. Hence no marketing support is provided by the appellant to the concessionaire. f) The cash collection and billing support is provided as the sale is made by the appellant to the customers. g) No office space is provided to the concessionaire but only shop is provided. The explanation given in the definition refers to office facilities. Shops can not be equated with the office. In view of the above points the appellant contended that the service is not taxable under the category of 'Business Support Service'. 3.4 Ld. Chartered Accountant further submits that the appellant started paying service tax under the category of Renting of immovable property w.e.f. 01/06/2007 which has been accepted by the department. The same service for the past period can not be classified under different category i.e. 'Business Support Service'. When revenue accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classification in question. Accordingly in the present the adjudicating authority by following due process of law decided the classification of the service under the category of 'Business Support Services' which is correct and legal. 5. We have carefully considered the submissions made by both sides and perused the records. 6. The issue to be decided by us is that whether the service provided by the appellant to the concessionaire is classifiable as 'Business Support Service' and liable for service tax during the relevant period or otherwise. The claim of the appellant is that they are engaged in trading of the goods. They contended that as per the agreement with the concessionaire they are purchasing goods from concessionaire and selling the same to the ultimate customers in their stores and the consideration is in the form of discount given by the concessionaire to the appellant which is a trading profit, hence not liable to service tax. It is the alternate submission of the appellant that from 01/06/2007 they are paying service tax on the same activity under the category of Renting of immovable Porperty therefore the service tax on the service can not be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of consideration is in different form, it will be treated as indirect consideration towards the said service. 6.2 As regard the question whether service provided by the appellant falls under 'Business Support Service' or otherwise, we reproduce the definition of the 'Business Support Service' prevailing during the material time as under: Support Services of Business or Commerce means services provided in relation to business or commerce and includes evaluation of prospective customers, telemarketing, processing of purchase orders and fulfillment services, information and tracking of delivery schedules, managing distribution and logistics, customer relationship management services, accounting and processing of transactions, operational assistance for marketing, formulation of customer service and pricing policies, infrastructural support services and other transaction processing. As per the plain reading of the definition, it can be seen that any service provided in relation to business or commerce is a 'support service of business or commerce'. In the present case the concessionaire is solely engaged in the commerce i.e. sale of their goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'Business Support Service' and we uphold the same view taken by the Adjudicating authority. The decisions cited by the Ld. C.A. in case of M/s. Board of Control for Cricket in India and M/s. NCR Corporation India Limited(supra) , we observed that both these orders are stay orders and not final orders therefore deciding the matter at final stage, stay order cannot be considered as in stay order prima facie view is taken for deciding pre-deposit and no final conclusion is drawn at the stay stage. As regard other decisions cited by the Ld. C.A., we have gone through all the judgments and found that in none of the case peculiar facts of the present case are involved, therefore ratio of those judgments cannot be applied to the facts of the present case. The appellant also raised the ground of limitation, we find that before 1-6-2007 appellant neither declared their service nor filed any ST-3 returns declaring the service of 'Business Support Service', therefore department was completely kept in dark about the provision of service under the category of 'Business Support Service', therefore there is clear suppression of facts on the part of the appellant, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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