2011 (11) TMI 410 - AT - Service Tax

Demand - Notification No. 14/2004-S.T. or Notification No. 25/2004-S.T - Time limitation - Whether service tax is to be paid on such commission categorizing the activity of the Appellants as business auxiliary service - The department made out a case that their activity amounted to Business Auxiliary Service even for the period prior to 10-9-2004 and issued a Show Cause Notice dated 31-7-2007 demanding such tax for the period 20-10-2004 to 18-12-200 - Assessee submit that though their service is being classified by revenue in Business Auxiliary Service , their service is in relation to banking and other financial service and they should be given the benefit of this notification - Kerala High Court in the case of C.C.E. v. Car World Autoline - (2009 (6) TMI 423 - KERALA HIGH COURT), where the Court held that the exemption is available only to an assesse providing banking and financial services - Held that the demand in this case can be sustained only to the extent covered in the normal period of limitation - Appeal is partly allowed

Issues involved:
Classification of service for service tax payment on commission received by appellants; Applicability of Business Auxiliary Services entry in Finance Act, 1994; Exemption eligibility under Notification No. 14/2004-S.T. and Notification No. 25/2004-S.T.; Time-barred demand for service tax; Examination of various issues related to spare parts, insurance commission, and subventions.

Issue 1: Classification of service for service tax payment:
The appellants entered into an agreement with a bank to provide sourcing and referral business for market loans, receiving commissions. The key issue was whether service tax was applicable on these commissions, categorizing the activity as "business auxiliary service."

Issue 2: Applicability of Business Auxiliary Services entry:
The dispute revolved around the interpretation of the Business Auxiliary Services entry in the Finance Act, 1994, both before and after 10-9-2004. The department argued that the appellants' activities fell under Business Auxiliary Services, leading to a Show Cause Notice and subsequent tax demand.

Issue 3: Exemption eligibility under Notifications:
The judgment analyzed Notification No. 14/2004-S.T. and Notification No. 25/2004-S.T. to determine if the appellants were eligible for exemption from service tax liability. The appellants contended that their services were related to banking and financial services, seeking exemption under Notification No. 25/2004-S.T.

Issue 4: Time-barred demand for service tax:
The question of whether the demand for service tax was time-barred was raised, considering the period of the appeal and the interpretations by judicial forums on invoking the extended period for raising demands.

Issue 5: Examination of various related issues:
The judgment highlighted the need to examine additional issues such as the value of spare parts, insurance commission payments, and the taxability of subventions. These matters required further scrutiny by the adjudicating authority.

The judgment acknowledged the appellants' arguments regarding the classification of their service under Business Support Service and referenced relevant case law to support their position. It noted that the adjudicating authority and the Appellate Authority failed to address specific issues raised by the appellants, leading to the appeal challenging the Commissioner (Appeals) order.

The judgment delved into the evolution of the Business Auxiliary Services entry in the Finance Act, 1994, emphasizing the applicability of the definition to the appellants' activities. It referenced previous tribunal decisions to support the conclusion that the services provided fell within the scope of Business Auxiliary Services.

Regarding exemption eligibility under Notifications, the judgment analyzed the provisions of Notification No. 14/2004-S.T. and Notification No. 25/2004-S.T. to determine the appellants' entitlement, ultimately concluding that the appellants did not qualify for exemption under the cited notifications.

In addressing the time-barred demand for service tax, the judgment considered the period of the appeal and the interpretations by higher courts on invoking the extended period for raising demands. It concluded that the demand could only be sustained within the normal period of limitation, rendering penalties inapplicable.

Furthermore, the judgment highlighted the necessity to examine unresolved issues related to spare parts, insurance commission payments, and subventions, leading to a remand of the matter to the adjudicating authority for further assessment and quantification of tax liability.

In conclusion, the appeal was partially allowed, and the matter was remitted back for re-quantification of the tax due from the appellants, emphasizing the need for a comprehensive review of the unresolved issues.

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