2025 (6) TMI 1583 - AT - Service Tax

Levy of service tax - Business Support Service - activity of procurement and sale of scrips for exporters - extended period of limitation. HELD THAT - The Commissioner in the impugned order does not specify as to which of the above services were rendered by the appellant and moreover from which clauses of the above agreement we do not find any payment being received by the appellant for rendering any of the above services. As rightly pointed out by the appellant they had in fact purchased the scrips at discounted prices and sold them for a simple margin of profit and on these sales VAT is being discharged which is not in dispute. The valuation adopted also is not on any service charges received by the appellant but on the difference of the face value of the license and the price at which the appellant had purchased the scrip which is not in accordance with the valuation rules. Therefore there being no service rendered as such and the imaginary value adopted also being not in accordance with the legal provisions of law there are no reason to sustain the impugned order on merits. The Tribunal in the case of ASL Motors Pvt. Ltd. vs. Commr. of C. EX. Service Tax Patna 2007 (11) TMI 73 - CESTAT KOLKATA in similar circumstances observed that When the appellants sold the cars and recovered the amount including the dealers margin the dominant intent was to sale the goods namely cars and not to provide free after sales service. In our view the entire amount including the dealers margin has been rightly taxed to sales tax representing the value of the cars. The provision of free servicing is merely incidental and intended to promote the sale of the cars. Hence we are of the view that no service tax can be levied on the amount representing the dealers margin or any part of it which already has been subjected to sales tax. Extended period of limitation - suppression of facts or not - HELD THAT - The period of dispute involved in this appeal is from May 2006 to March 2010 and the notice was issued on 31.01.2010 invoking extended period of limitation. There are no valid reasons implicated by the learned Commissioner to invoke suppression. Conclusion - i) There being no service rendered as such and the imaginary value adopted also being not in accordance with the legal provisions of law there are no reason to sustain the impugned order on merits. ii) The extended period cannot be invoked. The impugned order is set aside both on merits as well as on limitation - appeal allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal were:

- Whether the activity of procurement and sale of duty credit scrips/licenses by the appellant amounts to a taxable 'Business Support Service' under the service tax law.

- Whether the appellant's activity constitutes a provision of service or merely a purchase and sale transaction of goods (licenses/scrips) subject to Value Added Tax (VAT).

- Whether the valuation adopted by the Commissioner for levy of service tax was correct, particularly whether the profit margin on sale of scrips can be considered as the taxable value for service tax.

- Whether the demand raised by the Revenue is barred by limitation, considering the appellant's registration and payment of service tax on other services.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether the procurement and sale of scrips amounts to 'Business Support Service'

Relevant legal framework and precedents: The category of 'Business Support Service' is defined to include services related to promotion, marketing, sale, procurement, production, processing of goods or services on behalf of the client, or any service incidental or auxiliary to these activities. The appellant's activity was examined under this definition.

Court's interpretation and reasoning: The Commissioner held that since the appellant entered into agreements with exporters, undertook documentation, submission, follow-up, and bore expenses to obtain licenses, these activities fell under 'Business Support Service'. However, the Tribunal scrutinized the agreement and found that the appellant purchased the scrips at a discount (94% of face value) and sold them, discharging VAT on the sale.

The Tribunal emphasized that the Commissioner did not specify which particular service under the 'Business Support Service' definition was rendered, nor did the agreement show any payment received for a service. Instead, the appellant's activity was a straightforward purchase and sale transaction.

Key evidence and findings: The agreement between the appellant and exporters showed the appellant's role was to buy scrips at a discounted price and resell them, with the exporters bearing expenses for license verification. VAT returns were produced showing payment of VAT on these transactions.

Application of law to facts: Since the appellant was engaged in buying and selling of scrips, which are goods, and not rendering any identifiable service as per the statutory definition, the Tribunal held that the activity does not amount to a 'Business Support Service' liable to service tax.

Treatment of competing arguments: The Revenue argued that the appellant's documentation and facilitation constituted a service. The appellant countered that these were merely incidental to the sale and did not amount to a separate taxable service. The Tribunal accepted the appellant's position, noting the absence of any service charges and the presence of VAT on the transaction.

Conclusion: The procurement and sale of scrips by the appellant do not constitute 'Business Support Service' for service tax purposes.

Issue 2: Whether the valuation adopted by the Commissioner for service tax levy was correct

Relevant legal framework and precedents: Service tax valuation rules require that taxable value be based on the consideration received for the service rendered. The Tribunal relied on precedents including Idea Mobile Communication Ltd. and ASL Motors Pvt. Ltd., which held that profit on sale of goods cannot be taxed as service value.

Court's interpretation and reasoning: The Commissioner's valuation was based on the difference between the face value of the license and the discounted purchase price, treating this margin as taxable service value. The Tribunal found this approach incorrect as it was not based on any actual service consideration but on a notional profit margin.

Key evidence and findings: The appellant's VAT returns and agreement showed that the margin was part of the sale price of goods, not a separate service charge. The Commissioner did not identify any separate service fee.

Application of law to facts: Since no separate service charge was received, and the margin was part of the sale price of goods, the valuation for service tax was improper.

Treatment of competing arguments: The appellant relied on judicial precedents to argue that profit on sale of goods is not taxable as service tax. The Revenue's valuation was rejected for lack of legal basis.

Conclusion: The valuation adopted by the Commissioner for service tax was not in accordance with the legal provisions and cannot be sustained.

Issue 3: Whether the demand is barred by limitation

Relevant legal framework and precedents: The limitation period for service tax demand is governed by the Finance Act and judicial pronouncements such as Uniworth Textile Ltd., which require valid reasons for invoking extended limitation, particularly suppression or fraud.

Court's interpretation and reasoning: The appellant had registered for service tax in 2009 and paid tax on consultation services. The notice invoking extended limitation was issued on 31.01.2010 for the period May 2006 to March 2010. The Tribunal found no valid reasons or allegations of suppression to justify extended limitation.

Key evidence and findings: The appellant's registration and payment of service tax on other services and absence of any concealment or suppression were noted.

Application of law to facts: Without any justification for extended limitation, the demand for the earlier period is time barred.

Treatment of competing arguments: The Revenue did not provide sufficient grounds for extended limitation. The Tribunal relied on Supreme Court decisions to reject the extended period invocation.

Conclusion: The demand is barred by limitation and cannot be sustained.

Cross-reference: Issues 1 and 2 are closely linked as the question of whether the activity is a service directly affects the valuation and taxability. Issue 3 is independent but supports the appellant's case on procedural grounds.

3. SIGNIFICANT HOLDINGS

- "The Commissioner in the impugned order does not specify as to which of the above services were rendered by the appellant and moreover from which clauses of the above agreement, we do not find any payment being received by the appellant for rendering any of the above services."

- "They had in fact purchased the scrips at discounted prices and sold them for a simple margin of profit and on these sales, VAT is being discharged which is not in dispute."

- "The valuation adopted also is not on any service charges received by the appellant but on the difference of the face value of the license and the price at which the appellant had purchased the scrip which is not in accordance with the valuation rules."

- The Tribunal relied on the precedent in ASL Motors Pvt. Ltd. which held that "no service tax can be levied on the amount representing the dealers' margin or any part of it which already has been subjected to sales tax."

- On limitation, the Tribunal held: "We also do not find any valid reasons implicated by the learned Commissioner to invoke suppression as is held by the Hon'ble Supreme Court in the case of Uniworth Textile Ltd."

- Final determinations: The Tribunal set aside the impugned order on both merits and limitation grounds and allowed the appeal.