2018 (11) TMI 1220 - AT - Service Tax

Business Auxiliary Services - appellants were receiving commission from the financial institutions - appellant have not obtained registration and not paid service tax - Held that - The issue requires to be remanded to the adjudicating authority for the reason that the respondent has argued that the department has not looked into any other document except the document respondent has entered with ICICI Bank. All the documents on which the demand has been raised have to be looked into. Penalties - Held that - The issue had travelled upto the Larger Bench of the Tribunal. Being an interpretational issue the respondent has put forward reasonable cause to set aside the penalties and no penalty can be imposed on the respondent - penalty cannot be imposed. Appeal allowed by way of remand.

Summary

Issues:
- Whether the activity of the respondents falls under Business Auxiliary Services (BAS)?
- Whether the demand confirmed by the original authority should be upheld?
- Whether penalties imposed on the respondent should be set aside?

Analysis:

Issue 1: Activity falling under Business Auxiliary Services (BAS)
The respondents were engaged in trading consumer durables and providing warranty and maintenance services. The Department alleged that the respondents provided BAS without registration and not paying service tax. The Department claimed that the respondents received commissions from financial institutions for promoting their business, thus falling under BAS. The Commissioner (Appeals) allowed the appeals, stating the activity did not fall under BAS. The Tribunal found that the issue required further scrutiny and remanded the matter to the adjudicating authority. The Tribunal emphasized the need to consider all relevant documents and facts to determine if the activity falls under BAS, following the precedent set by the Larger Bench in a previous case.

Issue 2: Upholding the demand confirmed by the original authority
The original authority confirmed the demand under BAS, but the Tribunal found discrepancies in the analysis. The Tribunal noted that the demand was based on accruals in the respondent's books, whereas service tax should be paid on a receipt basis during the relevant period. The Tribunal directed the adjudicating authority to verify the demand quantification based on receipts and allow the respondent to present additional evidence if necessary. The Tribunal decided to remand the matter for fresh consideration to ensure proper evaluation in line with legal requirements.

Issue 3: Setting aside imposed penalties
The respondent argued to set aside the penalties, citing interpretational issues and conflicting decisions. The Commissioner (Appeals) and the Larger Bench had differing opinions on the matter. The Tribunal agreed that the penalties should be set aside due to the interpretational nature of the issue. Even though the case was remanded for reconsideration, the Tribunal ruled that no penalties could be imposed during the remand proceedings. Consequently, the Tribunal set aside the penalties while remanding the appeal for fresh consideration, respecting the respondent's reasonable cause and the complexity of the issue.

In conclusion, the Tribunal remanded the appeal for reconsideration to properly assess if the activity falls under BAS, directing a thorough examination of all relevant documents and facts. The penalties imposed on the respondent were set aside due to the interpretational nature of the issue and conflicting decisions at higher levels.