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TMI Blog2024 (9) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under BAS by providing call support service and it has been held in the case of PHOENIX IT SOLUTIONS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, VISAKHAPATNAM [ 2011 (1) TMI 642 - CESTAT, BANGALORE] wherein it has been held that assessee providing call centre service on behalf of the client would fall under BAS within the purview of Service Tax. In the case of M/S. IBM DAKSH BUSINESS PROCESS SERVICES PRIVATE LTD. VERSUS CCE, DELHI-III [ 2014 (5) TMI 616 - CESTAT NEW DELHI] , it was held that call centre service provided on behalf of the client would fall within the purview of Business Auxiliary Service. Extended period of limitation - HELD THAT:- The affairs of the appellant were in the knowledge of the Department as the Department conducted audit on 16.11.2005 and 08 to 10.01.2007, whereas, the show cause notice was issued on 26.03.2010 after a considerable delay of three years which is beyond the period of limitation - in the case of GOLDEN LAMINATES LTD. VERSUS COLLECTOR OF C. EX., DELHI-III [ 2000 (1) TMI 611 - CEGAT, NEW DELHI] , the Tribunal held that when the facts are already known to the Department, it cannot be alleged that the appellant had suppressed or mis-declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as call centre as defined under Notification No. 8/2003-ST dated 20.06.2003 w.e.f. 10.09.2004. He further submits that the appellant s service under agreement dated 01.07.2004 with M/s Spice Communications Limited is taxable as a business auxiliary service and therefore, the appellant had correctly paid the service tax on the entire consideration received under said agreement and the provisions of Rule 6(3) of the Cenvat Credit Rules are not applicable in the present case. 4.1 He further submits that the Commissioner (Appeals) has overlooked the provisions of Finance Act, 1994 under which it is not obligatory to avail the benefit of exemption notification under law, service provider is free to claim the benefit of notification or to pay service tax on the same. He further submits that it has been consistently held by the Tribunal that credit on inputs is not required to be reversed when duty has been paid wrongly on the final product. Ld. Consultant further submits that the appellant is providing customer care service under BAS by providing Call Support Service as per the scope of the service as stated in the agreement and further a portion of the service supplied cannot be vivisec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Vs. Commissioner of Service Tax, Ahmedabad- 2016 (42) S.T.R. 1010 (Tri.-Ahmd.). Ld. Consultant further submits that the entire demand is barred by limitation as the Department was fully aware of the activities of the appellant prior as far back as 16.11.2005, when the Department was conducted the audit of the appellant. The Department also conducted the audit on 08 to 10.01.2007 and further through their letter dated 22.03.2006 and 17.07.2007, the jurisdictional Assistant Commissioner had asked the appellant to deposit Rs. 24,41,467/- and Rs. 12,67,703/- for the period July, 2004 to September, 2005 and October, 2005 to February, 2006, respectively on the basis of the details provided by the appellant. As per the Ld. Consultant, these facts clearly established that there was no suppression of facts by the appellant; the appellant had paid Rs. 1,44,96,116/- as service tax on the alleged exempted service, which is more than the demand made for wrongly taken credit and it cannot be alleged that the appellant had any intention to evade payment of service tax, therefore, the entire demand is barred by limitation. In this regard, Ld. Consultant relied upon the following decisions : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solved. In this case, it can be seen that the nature of work performed by the so called electricity call centres, can be said to be registration of complaint on behalf of the electricity board and monitoring of the same till the complaints are resolved. The Electricity Call Centre is a place of generation of report indicating the details of the complaints received and resolved. When we look at the nature of services, it is covered by Clause (vi) under the definition of Business Auxiliary Service as defined in Finance Act, 1994 and [11:26 am, 10/09/2024] K.v: management of the complaints and resolution is covered by item/Clouse (vii) of the definition. The role of call centre according to the definition is to provide assistance, help or information through telephone on behalf of another person. In this case, the Electricity Call Centre is not providing any assistance excepting registering complaints which is basically a service to be provided by electricity company and it is also not required to provide any help or information. We are unable to see any of the three roles-assistance, help or information - in the details of work to be performed by the appellant as per the agreement. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all. Once the appellants deal with the customer, he is acting on behalf of the electricity company/department and therefore classification of services provided by the appellant is appropriately to be classified under Business Auxiliary Service and not under SSBC. 7. Further, we find that in the case of IBM Daksh Business Process Services (P), cited (Supra), wherein it was held that call centre service provided on behalf of the client would fall within the purview of Business Auxiliary Service and the relevant para of the said judgment is reproduced here in below: 7. So far as the Call Centre Service is concerned, there is no dispute that this being a service provided on behalf of the clients is covered by the definition of Business Auxiliary Service as given in Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994. There is also no dispute that during the period of dispute, this service was fully and unconditionally exempt from service tax under Notification No. 8/2003-S.T., As regards the BPO service, the same involved processing of mediclaims and transaction processing for the appellant's clients. Though the appellant plead that this service was also classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, in Section 83 of the Finance Act, 1994, indicates that the provisions of Section 5A of Central Excise Act, is not applicable to the Finance Act, 1994 . 9. We also find that the affairs of the appellant were in the knowledge of the Department as the Department conducted audit on 16.11.2005 and 08 to 10.01.2007, whereas, the show cause notice was issued on 26.03.2010 after a considerable delay of three years which is beyond the period of limitation. Further, we find that the extended period of limitation can be invoked where any service tax has not been paid or short paid by reason of (a) fraud; or (b) Collusion; or (c) willful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules thereunder with intent to evade payment of service tax . Whereas, in this case the Department has failed to establish any of the ingredients which is required for invoking the extended period of limitation as held in the case of Birla Corporation Limited cited (Supra), the Hon ble CESTAT held that when several rounds of audit was conducted by the respondent, it is the duty of the respondent officer to point out the wrong assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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