Service Tax: Real Estate Agent Service" and "Business Auxiliary Services: Demand: Taxable events: 1) Mobilizing deposits under Sahara Swam and Rajat Yoina :- It is admitted fact that 10% of fund mobilised were utilised towards the purchases of immovable property. As 10% of the funds have been utilised towards purchase of immovable property, that part of the funds is covered under remuneration for "Real Estate Consultant".Therefore, prima facie the applicant is covered under the category of "Real Estate Agent Service" for 10% of the total demand of service tax under this head.(Para 8.3). 2) Land Procurement Charges:- The applicants are collecting the money on behalf of M/s SlCCL and paying the same to M/s SICCL. Since the money due to SICCL is always available with the applicant, the point at which they show certain portion as their receipts from M/s. SICCL is a matter of accounting jugglery.(Para 9.5).Prima facie, there is disagreement with the ld. advocate that the applicant have not received any amount on account of "Land Procurement Charges" and it is also not clear from the Balance Sheet. Therefore, at this stage, the demand on this account is sustainable.(Para 9.6). 3) Mobilizing applications for Sahara Debentures/Bonds:- It is established that the debentures are not "goods" within the meaning given to it in Finance Act 1994 therefore the sale, marketing or purchase of these debentures are not covered under "Business Auxiliary Services.” Therefore, demand is not sustainable.(Para 10.6) 4) Personalized Services provided to Debenture/Bond holders :- It is held that debentures are not "goods" to attract service tax under the category of "Business Auxiliary Services" as per The Finance Act, 1994. Therefore, any service related to these "debenture" is not covered under "Business Auxiliary Service". Therefore, demands under this head are also not sustainable.(Para 11) As the applicants have not disclosed the activities undertaken by them to the department, prima facie the extended period of limitation is invocable.(Para 12). Partial pre-deposit is ordered, and on compliance balance amount of service tax, interest and penalties shall remain stayed during the pendency of appeal.(Para 14). 

Sale of Sim Card: Business Auxiliary Service: Conditional stay granted.

Service Tax: Commission agent service / Business Auxiliary Service: Demand: The activities so carried out in terms of the agreement was not of taxable nature during relevant period and was not expected to be taxed which is clear from para 18 of the Board's Circular No. B2/8/2004-TRU, dated 10.09.2004. When the law itself did not require the appellant to be liable. Therefore, there is no further warrant to look into suppression aspect when on merit the appeal succeeds. Consequently appeal is allowed.(Para 9). 

Business Auxiliary Service: No direct nexus between service provided and commission received: Partial stay granted.

Business Auxiliary Service: Appellant rectifying the defect in the inputs by undertaking some process and issuing debit note to the supplier of raw material for such charges  No service provided to the raw material supplier: No service tax.

Service Tax: Service tax under the head, Business Auxiliary Service’ on the toll collected: Demand: The agreement also disclosed the intention of NHAI to enter into an agreement with CIDBI for the purpose of implementing the project and grant of concession in relation to the aforesaid Highways by way of a ‘Concession Agreement’. The Agreement stated that the proposed Concession Agreement’ would be for a period of 30 years including the construction period. It further stated that this period of 30 years would commence from the date to be specified in the ‘Concession Agreement’.(Para 3). Accordingly, under the Concession Agreement, STPL was collecting toll charges on Sections of NH-5 and NH-9 in the capacity of Concessionaire’ and not as any agent of CIDBI. Now that the very basis of the show-cause notices has collapsed the impugned orders are set aside and the appeals of the assessee are allowed. In this process, the Revenue’s appeal gets dismissed.(Para 19).

Business Auxiliary Service: Discount on the bills earned by appellants not at par with commission on which they paid service tax, this being only price mechanism not liable to tax as commission.

Taxability: When there is an imposition of tax on a particular activity from a specific date, the same activity cannot be held to be falling under a different entry prior to the said date.

Business Auxiliary Service: When goods sold directly by the Company in the territory of respondents and respondents gets commission on the amount of sales directly made by company, the respondents cannot be considered as “Commission Agent” and are not eligible for exemption under Notificationn.No.13/2003 S.T.

Business Auxiliary Service: Income from Mutual Funds: Being considered as “goods” exemption under Notification.No 13/2003-S.T available: Prima facie case made out. Stay granted.

Business Auxiliary Service: Cash Management Service: Collection of bills for electricity and telephone not covered under BAS.

Service Tax: Commission on sale of sim cards, recharge coupons etc. used for mobile phones: Taxability: It is established that selling of sim cards does not attract service tax liability under the category of business auxiliary services. Condition of pre-deposit of duties and penalties waived and allow the stay petition unconditionally. (Para 3).

Service Tax: Business Auxiliary Services: Providing space to financial institutions in authorized service station: Board Circular No. 87/05/2006-S.T Dated 06.11.2006 As observed in the Board circular, there were doubts in the field as regards such activities being chargeable to service tax. The demand raised beyond the normal period of limitation against the appellant is clearly barred by limitation. Accordingly, set-aside the impugned order on the said ground and allow the appeal with consequential relief to the appellants. (para 4)

Service Tax: Receipt of liquor from various manufacturers who are distilleries, brewery, blending unit: Taxability: The appellant is engaged in an activity akin to trading and the activities undertaken by the appellant is nothing but a sale of liquor and cannot be held as services rendered to the distilleries.(Para 7). The impugned orders is set aside and appeals allowed.(Para 7.1).

Service Tax: Business Auxiliary Services: Commission: Pre-deposit: Prima facie, the assessees have promoted or marketed insurance mediclaim policy and therefore have rendered Business Auxiliary Service. As regards continued usage of software, the assessees have prima facie promoted the services provided by M/s. Amadeus and have therefore rendered Business Auxiliary Service. Ground arrangement/accommodation, site seeing etc. are classifiable as "Tour Operator Service". Income received from cancellation of tickets also prima facie amounts to rendering of Air Travel Agent's service. The assessees have, therefore, not made out a case for total waiver of tax. (para 2,3)

Service Tax: Business auxiliary services: Demand: Waiver of penalty: As per Section 65(19) of the Finance Act, the business auxiliary service has been defined wherein a specific sub clause (v) is introduced to bring production of goods for, or on behalf of the client within the scope of Service Tax levy. Accordingly process is an integral part of production and keeping the intention of legislation while inserting the word “production” initially in 65(19) was to levy Service Tax on this activity of production/processing. Accordingly, demand is confirmed. The issue involved in this matter is of interpretation of the statute, hence it is fit case to invoke section 80 of finance Act to waive penalty. Accordingly, penalty is waived and appeal is disposed of.(Para 7)

Service Tax: Taxable Value: Pre-deposit: In view of the categorical finding by the Commissioner that the value of the goods supplied was not known to the service provider and the charges were made on the service receivers on the basis of percentage, appellant has not been able to make out a strong prima-facie case in their favour. The appellant should be directed to deposit an amount of Rs. 20 lakhs (para 4)

Service Tax: Business Auxiliary Services: Software maintenance: Service tax sought on maintenance of software received from foreign company: C.B.E. & C. Circular dated 7-10-2005 holding that software being goods, maintenance thereof liable to Service tax under Business Auxiliary Services - Information technology service specifically excluded from Business Auxiliary Services till introduction of separate service in 2007 - Maintenance of computer software covered under information technology in Business Auxiliary Services before 2007 - Term ‘goods’ defined as including computer software by Finance Act, 2007 - Amendments made in 2007 without retrospective effect - Impugned circular contrary to statutory provisions on imposition of Service tax on maintenance, repair or servicing of software during period before Finance Act, 2006 and the same declared as not applicable to petitioner - Section 65(19) of Finance Act, 1994 - Section 37B of Central Excise Act, 1944 as applicable to Service tax vide Section 83 of Finance Act, 1994. [paras 2, 5, 6, 7, 8, 17, 22]

Petition disposed off.

Service Tax: Business Auxiliary Services: Commission: Board Circular No. 87/05/2006-ST dated 6.11.2006: Penalties: In view of the recognized fact that there was doubt relating to the taxability of the service as noted by the Board circular dated 6.11.2006, the non-payment of tax by the respondents during the relevant period cannot be held to be intentional. Therefore, the order of the Commissioner (Appeals) in setting aside the penalties imposed under Sections 77 & 78 is justified and calls for no interference.

Service Tax: Business Auxiliary Services: Commission received for distribution of mutual fund units: Pre-deposit: As the main contractor has duly discharged service tax liability on the said commission, service tax is not liable to be paid by the applicants as Finance Act does not provide for double taxation of the services. Following the decision of the Larger Bench in the case of M/s. Vijay Sharma & Co., that applicant had strong primafacie case in their favour. Accordingly, waiver of entire service tax and various penalties (para 3,6)

Service Tax: Business Auxiliary Services: Collection of toll tax: Pre-deposit: Collecting toll tax is a sovereign function and cannot be termed as business auxiliary service. The applicant has made out a strong prima facie case in their favour. Accordingly, waiver of entire tax, interest and penalty is allowed and its recovery stayed during pendency of the appeal. (para 4)

Service Tax: Business Auxiliary Services: Cenvat Credit: No credit was taken in respect of invoice dated 30.03.05 and the differential amount of Rs. 306/- has also been paid, there was no short payment and there was no excess availment of cenvat credit. Since matter can be decided finally which both sides agree, the appeal itself is taken up for decision the impugned order is set aside in toto with consequential relief to the appellants. (para 3)

Service Tax: Business Auxiliary Services: Commission: Services received from abroad: Cenvat Credit utilised for discharge of Tax under Section 66A: The appellant is deprived of making use of the Cenvat credit. Since the matter in controversy involves question of law, there may be waiver of pre-deposit during pendency of the appeal. (para 3)

Service Tax: Business Auxiliary Services: Activity amounting to manufacture: Board’s Circular No. 249/1/2006-CX.4 dated 27.10.2008 : This aspect was also part of the activity of the appellant for all the periods covered by order-in-appeal dated 18.02.2009 ibid and order-in-original dated 31.12.2008 ibid, which were accepted by the department Further the issue involved in the present case is squarely covered in favour of the appellant by the decision of the bench in Rubicon Farmulation’s Ltd which took into account the Board’s Circular dated 27.10.2008. The circular is binding on the departmental authorities. The impugned order is set aside and this appeal is allowed (para 2,3)

Service Tax: Business Auxiliary Service: Services received from abroad: The enabling provisions of Section 66 A of the Act, 1994 for charging of service tax from the service recipient in India, in respect of taxable services received from abroad from a person not having office or establishment in India was introduced w.e.f. 18.04.2006 and in view of this, Hon'ble Bombay High Court in case of Indian National Shipowners Association (supra) has held that for the period prior to 18.4.2006, the service tax liability cannot be fastened on the service recipient in India in a situation where taxable service is provided by a non-resident person not having office/establishment in India. The Revenue's appeal as well as stay application is dismissed. (para 4)

Service Tax: Cenvat Credit : Input Services: Pre-deposit: In respect of demand relating to other services, demand arising out of credit on various services, the same are contentious and the submissions in respect of each of them have to be gone into in detail at the time of final hearing. Taking the entire facts and circumstances into account, direct the applicant to deposit a sum of Rs. 40,00,000/- (para 7)

Service Tax: Authorised service station and Business auxiliary service: Prima facie that the sale of parts and components during rendering services during warranty period cannot be treated as part of the services. Merely because these items were used in undertaking the repairs /maintenance, the same may not become part of the services undertaken. Therefore, the demand of about Rs. 1.88 crores is not, prima facie, sustainable. (para 6.1.)

Service Tax: Authorised service station and Business auxiliary service: Incentives paid to the dealers : The incentives have a direct relationship with the value of goods so sold on which excise duty becomes payable. To treat the value as representing the value of business auxiliary services, is prima facie not correct. And therefore, the demand of about Rs.75.23 is also not, prima facie, sustainable. (para 5.2.)

Service Tax: Business Auxiliary Services: The Larger Bench judgment in the case of Maa Sharda Wine Traders Vs Union of India reported in STO 2008 MP 874 MP has held that packaging and bottling of liquor is covered by the definition of manufacture as defined in Section 2(f) of Central Excise Act, 1944 and will not attract any service tax liability. The impugned order of Commissioner is set aside and allow the appeal with consequential relief. (para 4,5)

Information Technology Service: Appellate preparing bills on the tailor made software and handing over the bills to clients not to the customers of the clients: Before 1.5.2006 BAS definition excluded Information Technology Service, hence, not taxable.

Service Tax: Business Auxiliary Services: Show Cause not travelled beyond scope: The show cause notice only makes a statement of fact that call centre service was exempt till 1.3.06 and nowhere there is an admission that the appellant was rendering call centre service only. (para 8)

Service Tax: Business Auxiliary Services: Call Centre activities: The activities of registration of complaints/monitoring of complaints, collection of payments, accounting for the same and management of accounts and complaints cannot be called as call centre activities. (para 12)

Service Tax: Business Auxiliary Services: Registering of complaints and collection of bills: 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. (para 12)

Service Tax: Business Auxiliary Services: Maintenance & Repairs of software: Clarification which widens the scope of tax cannot have retrospective effect: In every case, word 'maintenance' has been used. In the absence of the word 'development' and presence of word 'maintenance' in the agreement, and also in view of the failure of the appellant to submit bifurcation, have to take a view that the agreement covers maintenance only. In view of the ratio of the decision in the case of Martin Lottery Agencies Ltd, it would not be appropriate to apply the explanation retrospectively and levy Service Tax w,e.f. 9.7,04. In any case, the very fact that explanation has been added to clarify doubts, would show that suppression of facts could not have been invoked in this case. In view of the above decision, maintenance of software became taxable only from 1.6.07. (para 14,15)

Service Tax: Support services of business or commerce: Billing & Meter reading: When the meter reading is not done by the implementing agency, as can be seen from the contract with the respective Assistant Accounts Officers or EROs are required to provide meter reading books on the prescribed dates and the appellant is required to enter the data of meter readings, verify the same, incorporate in the computer master and process the bills, this activity is correctly classifiable under SSBC as claimed by the learned Advocate. The spot billing and HT billing is also covered in the same category. (para 17)

Service Tax: Support services of business or commerce: Energy audit: This service is clearly covered by SSBC since it is in relation to business or commerce, which is nothing but supply of electricity and recovery of cost thereof. It is covered by "managing distribution and distribution logistics". In this case, by doing energy audit, the appellant is assisting in finding out whether all the electricity received has been sold and if not, where the problem lies. This is nothing but management of distribution and logistics of electricity supplies. Therefore, this is clearly covered under SSBC and not under Business Auxiliary Service. (para 18)

Service Tax: Support services of business or commerce: Consumer Indexing : In this case, development of software only facilitates the consumer indexing and real work is physical in nature as observed by learned Commissioner. Back office services and other activities such as tax service, international assignment service etc. were not related to development of software. It was also observed that use of computer in these services was secondary and primary activity was that of business related work. Therefore, it is quite clear that this cannot be classified as I.T. service. The electricity companies/departments are required to know where the transformers and poles are located and consumers connected to poles/transformers to provide service or to attend to the complaint etc. This facilitates better distribution of electricity and also solves logistics problems when complaints are received. Therefore, this service is also appropriately classifiable under SSBC. (para 19,20)

Service Tax: Business Auxiliary Services: Watch and Ward Route Rider service: This is a part of Electricity Call Centre, Customer Service Centre and Computerized Collection Centre and is a subsidiary activity relating to them. These services are classifiable under Business Auxiliary Service only. Therefore, this service is also correctly classifiable under Business Auxiliary Service. (para 21)

Service Tax: Business Auxiliary Services: Extended period of limitation: It is a statutory obligation on the part of every service provider to see whether the service rendered by him is liable to Service Tax and make declaration to the department. There is no indication to show whether the appellant had sought clarification from the department or obtained any legal opinion as regards liability to Service Tax. There was a statutory obligation cast on the appellant to obtain registration and pay Service Tax in respect of various services. It has to be noted that even on 3.3.06, when the application was made, the appellant had not indicated all activities undertaken by them. Therefore, have to uphold the invocation of extended period. (para 22)

Service Tax: Business Auxiliary Services: Penalty: The learned Commissioner has imposed penalty under Section 76 but has not quantified the same. Therefore, to this extent, the impugned order is defective. (para 23)

Service Tax: Business Auxiliary Services:  Remand: The demand has to be re-quantified, since in some cases, the classification has been changed and in some cases, the appellant's claims have been accepted. Further, as already observed, the corrigendum was issued to amend the amount of Service Tax demanded. Further, penalty under Section 76 of Finance Act, 1994, has not been quantified. For this purpose, the impugned order is required to be set aside and matter remanded to original adjudicating authority for fresh decision (para 24,25)

Service Tax : Business Auxiliary Services : Commission received for promoting business : Pre-deposit : The Revenue was fully aware of the activities and as such, with introduction of a new services under the category of business auxiliary services with effect from 1.7.03, if the Revenue was of the opinion that the appellants activity fall under the said category, it should have either advised them to pay the service tax or should have proceeded to take action against them within normal period of limitation. There is no evidence reflecting upon any positive act of suppression or misstatement with intent to evade payment of duty by the appellant. Reflection of the income and the said activity is the ledger account and the balance sheet will reflect upon the absence of any willful suppression or mis-statement on the part of the appellant so as to invoke longer period of limitation. On this short point, allow the stay petition unconditionally. (para 3)

Service Tax: Pre-deposit: Business Auxiliary Services: Service provided by Direct Selling Agents/Teams for promoting the marketing and business of Private Sector banks : If non-obtaining of registration can be held to be a factor for invocation of longer period, no case of demand which stand subsequently made, would be held to be barred by limitation. The appellant has a prima facie, case on time-bar. The stay petition is allowed unconditionally. (para 4)

Service Tax: Business Auxiliary Services: Section 80: Penalty: There was reasonable cause for failure on the part of the assessee to clear the dues in time. The said finding cannot be said to be either perverse or not borne out from the record. In those circumstances, the discretion having been exercised by the Commissioner in favour of the assessee, in the peculiar facts of the case, do not find a case for interference with the impugned order. The very nature of the entry relating to Business Auxiliary Service and the large number of disputes that arose regarding the scope of entry clearly show that there was some confusion in the minds of prospective assesses about the scope of this entry. (para 6,9)

Service Tax: Busineaa auxillary services: Demand: The definition of "Business Auxiliary Services" during the period 10.9.2004 to 28.2.2005 (relevant period in the present case) was indicating about the services rendered "production of goods on behalf of the client", while the amended definition of 16.6.2005 indicated "production of goods for or on behalf of the clients". The appellant has made out a prima facie case for waiver of the pre-deposit of the amounts involved. Application for waiver of the pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of the appeal.(Para 6).

Service Tax: Business Auxiliary Services: Machining of castings carried out by the assessees on job-work basis for clients : Photographs of process : Remand : The impugned order is set aside and remand the case for fresh decision on the basis of the assessee's explanation as to how their activity .of machining does not amount to manufacture. The appeal is thus allowed by way of remand. (para 2,3)

Service Tax : Business Auxiliary Services - Commission agent - Service tax on commission for acting as agent for marketing and sale of tea overseas - Petitioner contending that Service tax not payable as tea covered as ‘agricultural produce’ and commission agent thereto exempted under Notification No. 13/2003-S.T. as amended - Revenue stating tea being manufactured product, not covered under exemption meant for agricultural produce and writ petition filed before issue of show cause notice, premature - Revenue’s submission that show cause notice would be issued - Respondent directed to issue show cause notice and decide as per law after hearing petitioner - Sections 65(19) and 93 of Finance Act, 1994. [paras 1, 5, 7, 8, 9, 10]

Brand promotion: The appellants are justified in contending that the entry relating to brand promotion under Section 65(105)(zzzzq) was introduced w.e.f. 26.02.2010. This obviously shows that the brand promotion was not included in the category of business auxiliary services prior to the said date.

Introduction of new Service: It is settled law that the charge created by introducing a new entry and consequently taxability thereupon, the question of imposing the duty retrospectively does not arise. The statutory provision did not provide brand promotion to be a taxable service during the relevant period. It is not for this Tribunal to deal with the issue as to whether display of logo would fall in this category or not.

Burden of Proof: It was for the department to establish the positive effects of display of logo and it was not for the assessee to prove the negative. The burden to establish the charge was squarely upon the department which it failed to discharge.

Beyond the scope of the show cause notice: The adjudicating authority, for the reasons disclosed herein above, did travel beyond the scope of the show cause notice while deciding the matter.

Service Tax: Business Auxiliary Services: Application for stay on operation of order: Commission received from finance companies : This issue is settled by the Tribunal in favour of the respondents in the case of Popular Vehicles & Services Ltd. Vs. Commr. of Central Excise, Ranchi reported in = STO 2010 CESTAT 743 whereby in the similar situation, the Tribunal held that the demand of service tax is not sustainable. In view of the above decision, prima-facie, no merit in the stay application and the same is dismissed. (para 2).

Business Auxiliary Service: Medicines containing alchohol though duty collected by State Government under Medicinal & Toilet Preparations Act, the process amounts to manufacture u/s 2(f), hence, outside the purview of levy of service tax.

Service Tax: Business Auxiliary Services: It is seen that apart from selling the SIM Cards of M/s. Bharti Airtel Limited they also sell the mobile phones. Absolutely no inquiry has been made with the respondents and no statement in this regard asking them about the source of the income declared to the income tax authorities has been recorded. The evidence gathered by the Department is not sufficient to establish even the preponderance of probability. (para 4)

Service Tax: Exemption under Notification No. 14/04-ST: The benefit of exemption from the payment of Service Tax in terms of Notification No. 14/04-ST dated 10.9.2004as amended by Notification No. 19/2005 dated 7.6.2005 was denied to the assessee by the authorities below on the ground that the assessee was not engaged in providing 'Business Auxiliary Service' of textile processing. The Notification in question reads as under: -"In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts taxable service provided to a client by a commercial concern in relation to the business auxiIiary service, in so far as it relates to,-(a) procurement of goods or services, which are inputs for the client;(b) production of goods on behalf of the client……;(Para 2). Since the appellant herein is an individual and procuring the goods for clients which are inputs for his client, the assessee is covered by the first part of the Notification and is, therefore, entitled to benefit of the exemption under Notification No. 14/04. Hence, the demand of Service Tax, interest and penalty is unsustainable. Appeal allowed.(Para 4). 

Business Auxiliary Service: Appellant not a commercial concern, hence, not liable to pay service tax prior to May, 2006: Appellant causing sales for Aadishwar Motors and Shraddha Motors, Notification no.13/2003 exempts levy of service tax on commission agent who causes purchase or sale of goods: Matter remanded for verification of contracts.

Business Auxiliary Service: As per Explanation (zzzm) of Section 65 (105) of the Act, sale of space for advertisement in print media is exempted from levy of service tax

Service Tax: Business Auxiliary Services / Business support service: Show cause notice do not specify exact classification: No demand can be confirmed against any person towards service tax liability unless he/it is put on notice as to its exact liability under the statute. In the show-cause notice basic to the proceedings, the impugned activities were proposed to be classified under BAS and BSS. This proposal was confirmed by the Original Authority. This order is not in accordance with the law. The impugned order held that UTL provided services on behalf of the client i.e. Director, e-Seva and sustained the demand. Under BAS, there are seven sub-clauses. Demand under sub-clause (vii) could be on activities relatable to either one of the preceding six sub-clauses. Therefore, if a notice issued proposing demand under BAS, the notice will not be aware to the precise ground on which tax is proposed to be demanded from him unless the sub-clause is specified. In the instant case, service tax was proposed to be demanded for an activity under BAS and BSS. Under BSS also several activities are listed as exigible under that head. In the absence of proposal in the show-cause notice as to the liability of the assessee under the precise provision in the Act, we find the demand to be not sustainable.(Para 6). Accordingly, the demand and penalties imposed on the appellants is vacated and allow this appeal.(Para 7). 

Service Tax: Business Auxiliary Services / Vehicle Transportation Contract: Taxable event: Demand: From the definition of 'support services of business or commerce', it includes a particular activity "managing distribution and logistics". The activity undertaken by the appellant, fall under the category of "managing distribution and logistics" i.e. timely and safe delivery of the vehicles to the regional sales office from the factory premises, which is nothing but distribution of finished goods to the various places of the client. The logistics is transportation of the said goods from the factory to the regional sales office. (Para 9). The activities rendered by the appellant would be covered only under the category of 'business support services' and that also with effect from 01.05.2006 when specific entry was brought into taxable services under Section 65, (104C) of the Finance Act, 1994 and prior to 01.05.2006, the services rendered by the appellant would not fall under the category of 'business auxiliary services'. The impugned order is not sustainable and liable to be set aside. The appeal is allowed with consequential relief.(Para 11).  

Service Tax: Business Auxiliary Services: Weighment services: Tribunal has already looked into the matter, following the judicial discipline, dismiss the appeal of Revenue upholding the first appellate order.

Stay: Non Profit Making Organisation: Having only little funds in their bank account would cause undue financial hardship: Stay granted.

Business Auxiliary Service: Interest charged for finance provided cannot be considered as liable to service tax under the category of business auxiliary service: Stay granted.

Service Tax: Call center: Taxable event: Demand: Appellants are providing information of their clients to the callers/inquirers free of cost through telephone and enjoyed exemption from service tax claiming status of a call Center. As per Notification No. 08/2003-ST dated 20.06.2003, “Call Center” means “a commercial concern which provides assistance, help or information, through telephone, on behalf of another person”. The scope of “Call Center” has been further expanded vide Notification No. 12/2004-STdated 10.09.2004 and it reads as, “Call Center” Means “a Commercial concern which (a) provides assistance. Help or information; or (b) contacts customers including prospective customer, for the purpose of sales, telemarketing, payments through telephone, leased lines, satellite links, mail, fax wed chat and use of information system for monitoring and recording information on behalf of another person.(Para 4). The respondents are not acting for one party but for multiple parties and in the process, all are benefited. The primary function of the respondents is nothing but that of the Call Center. Appeals filed by the Revenue are without any merits and accordingly, reject the same.(Para 5). 

Service Tax: Business Auxiliary Services: Penalty: Being a new service and that too in the name of business auxiliary service, it is quite possible that appellant was not aware of his liability. Therefore as soon as he came to know and even before investigation started he took the registration is required to be considered as a favourable point. The appeal is allowed by setting aside the penalty under Section 76 and Section 78 of Finance Act, 1994. It is made clear that penalty under Section 77 for contravention of various provisions is sustained. (para 4)

Service Tax: Business Auxiliary Services: Collecting/bringing/forwarding prospective loanees and receiving commission from the service receivers: Notification No. 13/2003-ST date 20/06/2003: Commission Agent: By no stretch of imagination the appellant are covered under the definition of ‘commission agent’ as per the explanation to the notification. Learned Commissioner has rightly denied the benefit of the exemption under the said notification. There is no infirmity with the impugned order. Accordingly, the impugned order is upheld and the appeal is dismissed. (para 6)

Service Tax: Business Auxiliary Services: Space provided to financial instutions at authorised service stations : Bar of Limitation : There was doubt in the field as regards coverage of above activity under the category of Business Auxiliary service. The same stand clarified by the Board's notification dt. 6.11.06. Inasmuch as the period is much earlier to the issuance of said circular and the show cause notice stand issued on 24.07.08, the demand is required to be held as barred by limitation. Accordingly, the impugned order is set aside on the above issue and the appeal is allowed with consequential relief to the appellant. (para 4)

Business Auxiliary Service: Stay: Prima facie the record shows that appellants had provided BAS service and received remuneration from SICCL: Partial stay granted with directions to deposit part amount of tax, interest and penalty.

Service Tax: Business Auxiliary Services: Processing of Goods: Remand: Liability to service tax arises only w.e.f. 16.6.2005 as the definition of "Business Auxiliary Service" did not include processing of goods at any time prior to 16.6.2005. The service tax demand is required to be re-quantified for the period post-16.6.2005 and the case is remitted only for this purpose. (para 4)

Service Tax: Business Auxiliary Services: Processing of Goods: Penalty: In view of clear language of Section 80 of the Finance Act, 1994, the assessees are correct in contending that once the shelter under Section 80 has been extended by the Commissioner (Appeals) and this part of the order has not been challenged by the Revenue, no penalty could have been retained. Set aside the penalties as reduced by the Commissioner (Appeals). (para 4)

Service Tax: Business Auxiliary Service: Allotment of PAN card to Income Tax assesses : In the present case, the definition of "business auxiliary service" under Section 65 (19) was amended with effect from 10.9.2004; whereafter "incidental and auxiliary support service" is not a part of business auxiliary service. Prior to the amendment, however, the question was whether the job undertaken by the appellant was `incidental' or `auxiliary' to any of the services mentioned at clause (i) to (iii) of Section 65 (19) of the Act. Waiver of pre-deposit and stay of recovery in respect of the dues adjudged against the appellant. (para 7)

Service Tax: Business Auxiliary Service: Brokerage paid to yarn brokers: Penalty: Before the Commissioner (Appeals) the assessees conceded that tax on commission paid to depot managers is payable. Not required to consider any argument on the sustainability of this demand which is accordingly uphold. The demand of Rs.1,45, 154/- which is the demand on brokerage paid to yarn brokers, is however set aside in the light of the decision of the larger Bench of the Tribunal in the case of Larsen & Toubro Ltd. Vs. Commissioner of Central Excise, Chennai. As regards penalties, in view of the fact that the demand of approximately Rs.10 lakhs is being upheld, both penalties under Section 76 and 77 have been rightly imposed and accordingly uphold the same. The appeal is thus partly allowed by setting aside only demand of tax of Rs.3, 45,154/-. (para 2,3)

Service Tax: Business Auxiliary Services: IT Services: Accumulated Cenvat Credit: Refund: Pre-deposit: The respondents have made out a strong prima facie case for its entitlement to credit on the strength of the provisions contained in the Exim Policy. Do not find it necessary to interfere with the impugned order at this stage. The stay applications are rejected. (para 4)

Service Tax: Business Auxiliary Service: Providing Table Space: The appellant had provided table space to the financial institutions for which they were getting some money from them. The issue involved in this case is covered by the decision of Silicon Honda STO 2007 CESTAT 479 wherein it was held that the activity for providing the table space to the financial institutions cannot be brought within the definition of "Business Auxiliary Service". Hence the demands are not sustainable.

Service Tax: Business Auxiliary Service: Export of Services: Service provided to foreign supplier: Refund: CBEC Circular No. 111/5/2009-ST dated 24.2.2009.: The benefit of the service provided by the appellant accrued to the foreign companies outside India. In this case the service of procuring the purchase orders for the foreign supplier who is outside India and those procurement at purchase orders of good were used by the foreign supplier outside India and acted upon them supplied the goods from outside India. Following the ratio in the case of KSH International Pvt. Ltd. set aside the impugned order and allow the appeal filed by the appellant with consequential relief. (para 7)

Business Auxiliary Service: Strapping of wire rods at the factory of manufacturer not covered under BAS at the most it is activity relating to packaging: Prima facie case made out: Stay granted.

Service Tax: Business Auxiliary Services: Pre-deposit: Lower authorities have not substantiated under which of the various categories of taxable activities enumerated under BAS, the impugned, activity is classifiable. The submission that the impugned activity was originally found to be liable under the category of photography services and that the related demand had been vacated by this bench vide Final Order No 779 to 782/2007 dated 27.07.2007 is relevant and has considerable force. Complete waiver of pre-deposit of the adjudged dues and stay recovery thereof pending decision in the appeal. (para 4)

"Banking and Other Financial Services": Collection of taxes and deposit with Government merely operation of bank accounts: Recovery stayed.

Stay: Business Auxliary Service: Re-processing and reclaiming the metal from the waste and scrap supplied by the steel plant are exempted from the payment of service tax under Notification 8/2005 ST dated 1st March, 2005. Applicants already deposited substantial amount: On the basis of meritorious contention and fact of having already paid substantial amount stay from the balance amount of service tax, penalties and interest granted.

Business Auxiliary Service: Appellant a CHA gets brokerage from steamer agent for providing containers: since the secondary services ultimately get consumed/merged with services that are being exported, no service tax would be leviable on such secondary services, the assessees cannot be held liable to pay service tax.

Service Tax: Business Auxiliary Service: The impugned demand for three categories of services without indicating the process liability under the different heads is not legally sustainable. (para 5)

ervice Tax: Site formation and clearance, excavation and earthmoving and demolition: Pre-deposit: The impugned activities of surveying, drilling, blasting excavation and raising iron ore, transporting them for the purpose of sorting into iron ore lumps and iron ore fines, crushing, grading, etc. are prima facie `mining of mineral, oil or gas service brought under the service tax net from 1.6.2007. The period of dispute in the instant case is from 1.6.2007 to 31.3.2008.Therefore, prima facie the impugned activities cannot be taxed under any pre-existing entry.

Service Tax: Turnkey contract cannot be vivisected: Pre-deposit: The appellants have rightly relied on decision of the Tribunal in Daelim Industrial Co. Ltd. Vs. CCE STO 2003 CESTAT 9 wherein it was held by the Tribunal that a turnkey contract could not be vivisected and part of it subjected to service tax. The appellants have made out a prima facie case against the demand and penalties. Complete waiver of pre-deposit of the dues (para 7,8)

Service Tax: Production of iron ore amounts to manufacture and not liable to Service Tax: The appellants have substantiated their claim that production of iron ore is an exigible activity by reproducing Chapter 2601 of the Central Excise Tariff, 1985 (provision for ores) and Notification No. 4/2006-CE dated 01.3.2006 wherein ores falling under CSH 2601 to 2617 have been subjected to nil rate of duty. (para 5)

Service Tax: Clearing and Forwarding Agent service/ Del Credere Agent: Liability of Del Credere Agent: Combined reading of the definition of C&F agent under the Finance Act under Section 65(25) and the meaning of Del Credere Agent [ Meaning - He is a mere surety, liable to his principal only in case the purchaser makes default. Agent who is obligated to indemnify his principal in event of loss to principal as result of credit extended by agent to third party.-para 7], and the amendment brought into in the year 2005, whereunder Del Credere Agent is also included would clearly establishes that prior to the amendment, the service rendered by a Del Credere Agent had been excluded from service tax. Therefore, since the respondent-assessee was not a C&F Agent for IPCL as it was a Del Credere Agent the respondent-assessee is not liable to pay service tax as ordered by the Asst. Commissioner of Central Excise.(Para 10).

Appeal dismissed. 

Service Tax: Business Auxiliary Service: Service received from outside India: The issue has been decided by the Hon'ble Bombay High Court in the case of Indian National Ship owners Association holding that recipient of service from outside India is liable for service tax only from 18.4.2006 and the same has been confirmed by the Hon'ble Apex Court on 14.12.2009. In the present case, the period involved is prior to 18.4.06 hence the respondent are not liable to pay service tax as demanded in show cause notice as held by the Hon'ble Apex Court. The appeals are rejected. (para 6)

Service Tax: Business Auxiliary Services: Waiver of Pre-deposit: The demand has arisen on the ground that the appellant was providing marketing, administrative, technical and other auxiliary, services It is the submission that such activities provided by the appellant are undisputedly in relation to marketing of M/s Sun Singapore which is located outside in India. The appellant has made out a prima facie case for waiver of pre-deposit. Accordingly, stay application for waiver of pre -deposit of the amounts involved in the impugned order is allowed and recovery thereof stayed till the disposal of the appeal. (para 6)

Service Tax: Business Auxiliary Service: Commission: Refund claim of Service Tax without challenging the assessment - There is no such order or decision of the Central Excise officer, which is to be challenged. In that situation, the appellants cannot file any appeal against their own assessment. Accordingly, the impugned order is set aside and the appeal filed by the appellants is allowed. (para 7)

Service Tax: Business Auxiliary Service: Penalty: Delay in payment of Service Tax: After hearing both sides and taking into account the facts and circumstances of the case and also keeping in view that the delay in payment occurred in the period immediately after imposition of the new levy, the appellants can be given the benefit of the provisions of Section 80 for the initial period for penalties imposed under Section 76 and 77. The penalty imposed under Section 75A is confirmed as Section 80 has no applicability to penalties imposed under Section 75A. The appeal is partly allowed in the above terms. (para 3)

Port Service vs. Business Auxiliary Service: Stay: The railway siding charges are not covered under the scope of port service and the same are not related to vessels or goods and also in the case of Chennai Port Trust held that the service in question is Business Auxiliary Service. Keeping in view the above decision, the pre-deposit of the amounts of Service Tax and penalty are waived.

Service Tax: Business Auxiliary Services: Machining, drilling, turning, surfacing on iron castings: The activities carried out by the appellants amounted to 'processing' which was not included in the definition of `Business Auxiliary Service' prior to 16.06.2005. The service tax liability is set aside for the period upto 16.06.2005. For the period subsequent to the coverage of processing of goods under the heading `Business Auxiliary Service' the assessees have paid service tax together with interest and the demand for the period subsequent to 16.06.2005 is upheld. (para 2)

Service Tax: Business Auxiliary Services: Machining, drilling, turning, surfacing on iron castings: Penalty: Penalty under Section 76 and 78 is set aside by extending protection under Section 80 of the Finance Act, 1994. Penalty of Rs.1,000/- imposed under Section 77 of the Finance Act is upheld as the provisions of the above section are attracted for failure to file ST-3 returns. The appeal is partly allowed by setting aside the demand prior to 16.06.2005 and setting aside the penalties under Section 76 and 78. (para 2,3)

Service Tax - Business Auxiliary Services - Penalty - Pre-deposit & Stay -There is no dispute about the fact that the appellant voluntarily paid service tax on 31.3.2006 and 25.4.2006 and the notice for imposition of penalty was issued much later on 28.11.2007. There is also no allegation of any fraud, collusion and wilful suppression of facts with intention to evade payment of service tax. Therefore, prima facie, this case appears to be covered by the provisions of Sub-section (3) of Section 73 of the Finance Act, 1994, read with Board's Circular No. 137/167/2006-CX4 dated 3.10.2007. This Circular clearly says that once the proceedings under Section 73(3) are concluded, all the proceedings including those under Section 76, 77 & 78 also shall be concluded. Requirement of pre-deposit of penalty is waived for hearing of the appeal. Stay application is allowed. (para 6)

Service Tax: Business Auxiliary Services: The activity undertaken by the appellant is excluded from the purview of 'business auxiliary service' and the demand of service tax and penalties against the appellant are not sustainable.

Business Auxiliary Service: Appellants are not procuring input through a third person and supply directly to the client, but are heating the oil in their premises. Therefore, this activity will not amount to their rendering "Business Auxiliary Service" so as to hold them liable to Service Tax.

Consulting Engineer Service: There is no indication to show whether appellants are covered by the definition or to show that the service provided was that of consulting engineer. On the basis of assumptions and presumptions, a case cannot be made out against the appellant. Appeal allowed.

Business Auxiliary Service: Appellant’s submission is that they could not get details of deductions from the parent company hence the delay occurred in payment of Service Tax and the delay was not intentional. However, from the records it is found that appellants could get the details of TDS sufficiently in advance and therefore the explanation relating to other deductions does not appear to be valid. Appeal rejected.

Business Auxiliary Service: The appellants undertook the activity of  coating, bending, drilling etc. of components and machinery parts for a consideration. It cannot be said that they had undertaken the various activities on behalf of any other person. It was only with effect from 16.06.2005 that such activities undertaken by a person for another was brought under BAS.

Refund: Share Transfer Agents Service, which became taxable w.e.f. 01/05/2006 was held not to be covered under the pre-existing Business Auxiliary Services. Service Tax refund is granted after holding that such payment had been made under a mistake of law.

Input Services Vs. Sales Commission: Sales promotion has specifically been included in the definition of 'input service'. Complete waiver of pre-deposit. Stay granted.

Predeposit of penalty not to be insisted upon: The appeal should have been heard without insisting on pre-deposit of the penalties imposed. In the circumstances, the case is remanded to the Commissioner (Appeals) with the direction that the appeal shall be disposed on merits without insisting on the appellants making any pre-deposit. The appeal is allowed by way of remand.

Pathology Collection centre: Collection centre engaged in collection of samples and forwarding the same to the concerned laboratories for testing would not come within the purview of Business Auxiliary Services.

Turn Key Contract: It is settled that a turn key contract cannot be vivisected and a part of it subjected to service tax. 

Burden to the Assessee: Case involving minor amount where the Commissioner (Appeals) has allowed the appeal of the respondent based on the verification of facts even than Revenue filed this appeal. This is definitely improper exercise of power and unnecessary burden to the assessee. Revenue's appeal rejected.

No Suppression of Facts: It is very clear from the records that the Respondents had informed the Department all the processes undertaken by them vide letter dated 28.7.98 wherein the details of the activity undertaken has been informed to the Superintendent of Central Excise. The Commissioner (Appeals) in the impugned order has elaborately dealt with the facts and came to the conclusion that there was no suppression of facts for invocation of the extended period. There is no merit in the appeal of the Revenue.  

GTA Service & Business Auxiliary Service: Service tax credit of tax paid as recipient of service: When the manufacturer takes credit of service tax paid under GTA services on incoming consignments, such credit can be utilized for paying the duty on the excisable goods manufactured by them and for paying the service tax on output services. There being different opinions. Matter referred to Larger bench.

Business Auxiliary Services v/s Commission: The discount cannot be considered as commission which requires to discharge the service tax. Stay Granted, predeposit waived.

Business Auxiliary Service : Commission received from Bank for arranging loans. Matter remanded back as Commissioner did not go into the merits of the Case and proceeded on erroneous  footing that, a bank cannot avail of ‘Business Auxiliary Services’ as a client.

Business Auxiliary Service: Dharamkanta: As respondents are not concerned with the sale or marketing of the goods, therefore, can not be said to be provider incidental or auxiliary service to any activity such as promotion or marketing or sale of goods produced.

Commercial concern: The Trust deed is required to be examined for the purpose of determining as to whether the respondents can be treated as a ‘commercial concern.’ Matter remanded back for denovo adjudication.

Pre-deposit: Pre-deposit Order as prima facie the Tribunal did not find merits in the appellants contention that establishment expenses being reimbursed to them by the company, that portion cannot be added for charging service tax on the business auxiliary service.

‘Business Auxiliary Services’:  HPCL directly marketing their products to customers and the applicant is rendering various support services which prima facie can be considered as ‘Business Auxiliary Services’. Pre-deposit Order.

Penalty not justified: Appellant having been absolved of the tax liability, it could not be saddled with any penalty and therefore, on this ground alone, the impugned order of the Commissioner is fit to be set aside.

Export of Service: Revenue contended that service of booking orders for foreign supplier for supply of goods in India, therefore, such service is not delivered outside India and also not used outside India. Tribunal observed that this aspect has not been considered by the adjudicating authority or the Commissioner, hence, the matter remanded back. Revenue’s appeal allowed by way of remand

Commission Agent: Notification No. 13/2003 not applicable to appellants as they were dealers in cars and received commission by way of arranging car loans from the banks to whom they had provided the facilities in their premises. Explanation to Notification exempts only such commission agents, who cause sale or purchase of goods on behalf of another person.

Service received from outside India: The service provided by a service provider who has no office in India becomes taxable with effect from 18-4-2006 with insertion of Section 66 of the Finance Act with effect from 18-4-06. Issue already settled.

Business Auxiliary : Appellant  a resident of India but has his office in USA. He procures orders for his clients in India. The same comes under the category of “Business Auxiliary Services” which is taxable, however, the period covered in the dispute is from 8-7-2004 to 31-12-2004. Board’s Circular No. 36/4/2001-S.T. dated 8-10-2001 states that the said service became taxable from 18.4.2006 Appeal allowed with consequential relief.

Facilitating purchase of motor vehicles: Respondent engaged in the business of sale of Two Wheel/Four Wheel motor vehicles. Besides selling the motor vehicles it also renders the services as Direct Selling Agent and Direct Marketing Agent for financial institutions like ICICI Bank, HDFC Bank etc. viz. processing papers, evaluation of customers falling in the category of Business Auxiliary Service. For facilitating purchase of motor vehicles, it receives service charges from such financial institutions. The case of the Revenue is that the respondent is liable to pay Service Tax on the amount charged in lieu of such Business Auxiliary Service. Case remanded back with directions.

Service provided abroad : Services rendered outside India are made liable to Service tax in view of Section 66A which has been inserted in the Service tax provisions of Finance Act, 2006 with effect from 18-4-2006. Whether the services received by appellants can be considered as services received from abroad or service  received within the country being the question to be decided on merit, partial waiver granted.

Maintenance & Repair : As, the applicants are providing service to National Highway Authority, in respect of Toll collection, keeping in view, facts and circumstances, it is not a fit case for total waiver of Service tax. Appeal dismissed by the Commissioner (A) for non compliance under Section 35 of Central Excise Act. Matter remanded back to Commissioner (Appeals).

In absence of specific provision, the rate of tax applicable to the service tax: shall be the rate prevailing on the date of rendering the services.

Services rendered outside India: Stay: Prima facie, the Apex Court has held that the service tax is not leviable for the service rendered outside India. The Board Circular supports this plea. In any case, the service tax has been deposited before the issue of show cause notice. Hence the prayer for waiver of pre-deposit of the penalty amount is justified.

Business Auxiliary Service : Appellants provide Business Auxiliary Service, they canvass customers for the Bank who would finance them for the purchase of vehicles. The Bank took an amount of Rs.10,000/- per vehicle as commission paid to the appellants, but actually, an amount of Rs.8,000/- was being paid to the customer directly by the bank and the appellants only received Rs.2,000/-. Appellants discharged service tax liability on Rs.2,000/- per vehicle.
Prima facie case found to be strong.  Appellants had also paid certain amounts which were treated as pre deposit and requirement to pre deposit the balance amount waived.

Producing or processing of goods : On the issue of processing the goods ‘for a client' and not ‘on behalf of a client’ and that processing of goods for a client become liable to service tax by widening of definition of ‘Business Auxiliary Services’ only w.e.f. 16-6-2005 which is subsequent to the period in dispute, is debatable. Prima facie case for total waiver not made out.

Business Auxiliary Service : Powder coating the furniture, electric panel boards, metal cabinets for UPS, stabilizers, etc., and on other metallic items supplied by the customers/clients on job work basis does not amount to “manufacture” and the activity is covered under the category of “Business Auxiliary Service’ -  Exemption of the value of the goods and material sold to the customer available under Notfn.No.29/2007-ST dated 22.5.2007 – On the question of interpretation of law penalty not imposeable.

Business Auxiliary Service : The appellants were not carrying out any marketing or sales promotion through advertisement or publication for bank. They only analyze the credentials of the customers who approached them  Prima facie not covered under the category of Business Auxiliary Service. However, merit not examined by lower authority, matter remanded.

Franchisee Agreement : The appellants entered into an agreement with the ICICI Bank to promote retail activities of the bank. They are under the franchise agreement with the ICICI Bank. Terms and Conditions of the agreement shows that the appellants has to promote retail finance of the bank. Therefore, the appellants are providing the service of business auxiliary.

Transportation of gas through Pipeline : The appellants only recover the cost of transportation from large customers for carrying gas from IOC and gas is purchased directly by such customers from IOC. After 15-6-05, such transportation through pipeline specifically included in the category of services for levy of Service Tax. Since they have not recovered any amount towards supply of the gas except for the transmission of the gas, prima facie case made out. Full waiver granted.

Turnkey project : Arbitrary order : Appellants had entered into a contract with M/s Madhya Pradesh State Transport Department on a turnkey basis for automation of the entire Transport department so that driving licence and registration cards can be issued in the form of smart card. Department treated the service under the category of Business Auxiliary Service. Appellants contested stating that it was Information Technology Service which was specifically excluded from the category of Business Auxiliary Service. Tribunal found that matter was not decided by considering the contentions raised in the reply to the show cause notice and also as the order has been passed without giving personal hearing, there is gross violation of the principle of natural justice. Matter remanded.

Business Auxiliary Service : Prima facie selling new mobile connections and recharge coupons (bucks) belonging to M/s Spice Communications (P) Ltd., amounts to rendering of Business Auxiliary Service in light of Apex Court judgement in the case of Bharat Sanchar Nigam Ltd v/s UOI.

Business Support Service : Activity carried out by the appellant do not come within the ambit of ‘Business Auxiliary Services’ but would come within the ambit of ‘Business Support Services’ which has come into effect on 1-5-2006. Since issue covered by decision of Tribunal. Full waiver granted.

Busssiness Auxillary Sercices : Stay Partly Granted :The applicants are undertaking the process of cutting of paper into sheets,  the production of goods on behalf of client is covered under the scope of service tax and thereafter  processing of goods on behalf of the client was also covered under the scope of tax. , As the applicants are undertaking the process on behalf of the client which does not amount to manufacture, prima facie not a Fit case for total waiver.

Exemption from service tax : Receipt of payment in foreign exchange : The purpose of Rule 3(2) of the said Rules is to earn convertible foreign exchange and then benefit of exemption of Service tax would be extended to the assessee.

Business Auxiliary Service: Service Tax paid prior to the issuance of show cause notice. Original authority imposed penalty of Rs.1,000/- u/s 78 Commissioner (Appeals) applied principles of section 11AC and Punjab & Haryana High Court decision in Machino Montell. There is no parallel provision to section 80 in Central Excise Act, 1944. Matter remanded for reconsideration.

Business Auxiliary Service: Stay: There are decisions of this Bench against the assessee on the question whether ‘overriding commission’ received by a GSA in Indian currency from foreign airlines companies is eligible to service tax in the category of Business Auxiliary Service. Full waiver granted on the contentions raised by appellants relating to limitation.

Composite Contract: Stay: Service Tax in respect of installation and commissioning of ATMs under the category of ‘Commissioning or Installation Services’. A composite cannot be vivisected has already been decided in the case of Daelim Industrial Co. which has been upheld by the Honorable Supreme Court. The Chennai Bench in the case of Diebold Systems Pvt. Ltd. on the similar issue had granted waiver from pre deposit. Following the judicial discipline full waiver granted. Revenue involved being more than Rs.5 Crores, matter to be heard out of turn. Stay application allowed.

Business Auxiliary Service: Stay Application: The service recipient is resident abroad and has no office in India. Overriding commission received from airlines abroad. Tribunal’s decision in ETA Travel Agency stayed by the High Court cannot be followed. Stay Application allowed conditionally.

Business Auxiliary Service : The banks were clients being recipient of such services from the respondents. The respondents were required to obtain loan applications from their customers who desired to avail loans from the banks. The respondents had undertaken to process those applications and after scrutiny forward them to the bank, for such services, they were paid commission by the bank, which was reflected in their account. Once consideration accrued to them, as against the services provided by them to the bank, by way of commission, it was hardly of any consequence how a portion of that commission, which as per the particulars provided by the Bank was given as “pay out” to assessees in respect of which even the TDS was deducted, was spent by them. If they chose to give some amount from that gross commission amount to their customers either directly or through the bank, it would not change the nature of the receipts in their hand. Commissioner (A) not examined these facts. Matter remanded back.

Stay: Business Auxiliary Service: Sharing thermal fluid with units similar to the assessee and charging them for the heat energy sold cannot be brought under the definition of ‘procurement of goods or services, which are inputs for the client’ and therefore as “Business Auxiliary Service”. Demand unsustainable. Stay granted.

Business Auxiliary Service : Collection of blood samples for principal do not fall under BAS. Technical testing or analysis in relation to human being or animals is excluded.

Stay : Business Auxiliary Service : Services provided to passengers of train in AC 2/3 tier coach since the appellants received rewards from Railways, the service could be considered as ‘customer care service’, for 1st class passengers since appellants directly collected charges from customers, it cannot be considered as customer care service on behalf of the client. Accordingly, stay partly granted.

Service Tax: Business Auxiliary Services: Sale of Lottery tickets: As such those would not be goods within the meaning of the definition clause in the Sale of Goods Act. If the lottery tickets are not goods, the writ petitioners cannot said to be rendering any service in relation to the promotion of their client's goods, or marketing of their client's goods, or sale of their client's goods.

Stay: Business Auxiliary Service: The term “processing” added in the definition from 16.6.2005, Board’s Circular No. 341/13/2005-TRU dated 12-5-2005 distinguishes ‘production of goods on behalf of the client’ and ‘production or processing of goods for, or on behalf of, the client’. Accordingly for the demand prior to 16.6.2005 on the appellants who were only doing the processing on unmachined castings. Stay granted.

Stay: Penalty: Service tax was discharged by the assessee before the department initiated any action. They have cited reliance on the Notification to claim exemption from Service tax. The Review Authority has imposed penalties. Similar matters already listed. Stay Granted. Matter listed with other matters for hearing.

Demand : Notification.No.25/2004-S.T exempted service provided under the category of Business Auxiliary Service for the period from July, 2003 to September, 2004. Expanded applicability of notification exempted services provided by appellants to customers of the Bank in relation to the services provided by the Bank to them.

Stay : Appellants brought within the category of Registrar and Share Transfer Agents from 1-5-2006. Revenue proceeded to demand Service Tax for previous period under the Business Auxiliary Service. The issue already decided by Tribunal in favour of appellants holding that such activity of transferring of shares and handling of shares would not come under the category of Business Auxiliary Services. Stay granted.

Stay: Business Auxiliary Service: Discount cannot be considered as commission. Prime facie case made out. Waiver granted.

Selling of sim cards : Prima facie, cannot be covered under the category of Business Auxiliary Service.

Service Tax: Business Auxiliary Services: Sale of Lottery Tickets: Sale or promotional or marketing service: On a balance of circumstances it appears that the essence of the writ petitioner's business venture is that of a middleman, and if it is a middleman's venture, then the activity, properly so called, cannot but be promotion or marketing. There will be no interim order. (para 19,20)

Service rendered outside India : Service tax not payable.

Stay : Business Auxiliary Service : Carrying on ‘House Keeping Services’ rendered in the Academic Center would not come within the ambit of ‘Business Auxiliary Services’. Prime facie no error apparent to grant stay of the operation of the order.

Stay : Buying and selling of re-charge coupons for making telephone calls is separate from being an agent. The demand is prima facie not sustainable.

Business Support Service: Verification of the details given by the loan seekers for ICICI cannot be treated as promoting their business. The services rendered by the applicants would be rightly classifiable as "Business Support Service" which came into taxable net only w.e.f. 1-5-2006.

Stay: Business Auxiliary Service: Carrying on the process of Rubber packing and rubber edging of polypropylene carpets and bringing the goods into existence is an activity of manufacture cannot be denied. Prima facie, plea that Service Tax is not attracted is required to be accepted. Stay application is allowed.

Business Auxiliary Service : The assessee, who had not claimed the benefit of exemption Notification initially, was not barred, prohibited or estopped from claiming such a benefit at a later stage.

Business Auxiliary Service: Stay application: Challenge on the ground that activity carried out by appellants results in a process of manufacture and the valuation arrived at is not correct. Amount of Rs.85 lakhs already deposited. Stay application partly allowed.

Business Auxiliary Service: Sale of SIM cards: Appellants purchase SIM cards and recharge coupons from BSNL and sell the same for a profit. Sales Tax Authorities are proceeding against the similarly situated parties for payment of Sales Tax. This Bench already taken a view that the appellants do not render any service but simply sell the goods. Therefore, they would not be liable to pay Service Tax under the category of “Business Auxiliary Services”.

Business Auxiliary Service: Telephone service: Service tax has been discharged by BSNL and they were not getting Commission but were trading in the cards. They were discharging sales tax. No liability towards service tax.

Penalty: Their job was to process the loan applications of public and forward the same to the Bank in Nasik for sanction of loans. They have not collected any Service tax from the parties concerned nor the bank has agreed to pay the same on such kind of service rendered to public. Service tax paid with interest. Nominal penalty imposed by lower authority accepted by appellants. Enhancement of penalty not warranted.

Business Auxiliary Service: They have purchased BSNL post-paid/pre-paid Cellular Sim Cards and sold the same in the market. They have paid sales tax. BSNL has clarified that it has paid service tax on the entire amount. No service tax can be levied for selling of SIM cards.

Business Auxiliary Service: Commission Agent: C&F Agent: In substance the relationship of the respondent with its principal is that of a commission agent. Receiving the goods and storing them are only incidents, which would enable the appellant to sell the goods for a commission in the territory allotted to it. Not covered in the definition of C&F Agent. Commission Agents exempted from service tax vide Notfn.no.13/2003-ST.

Business Auxiliary Service: overriding commission received from abroad from Malaysian Airlines: Commission received in India in convertible foreign currency is exempted under Notification No. 21/2003-ST, however, company received commission in India in Indian currency from Indian office of the Airlines, hence, liability to service tax and interest confirmed. Penalty u/s 78 reduced, penalty u/s 76 sustained.

Business Auxiliary Service: Registrar and Share Transfer Agent: Demand prior to 1.5.2006 for Registrar & Share Transfer Agent cannot be confirmed. They were not providing any Business Auxiliary Service. Stay rejected.

Business Auxiliary Service: Mere fact of financial institutions being provided with space by the appellant and the appellant receiving some money for that lease of table space cannot be brought within the definition of "Business Auxiliary Services".

Stay : Business Auxiliary Service : Sale of SIM cards and Recharge coupons. Following earlier decisions, stay partly granted.

Stay: Business Auxiliary Service: There are no reasons to grant waiver as admittedly, they were carrying on business and receiving commission from ICICI.

Business Auxiliary Service: Stay: Services rendered by appellants became exigible to service tax from 1.7.2003, however, since Commissioner (A) did not take into consideration request for modifying the stay order asking them to pre deposit Rs.10 lakhs and without hearing the appellants dismissed the appeal for non compliance. Matter remanded back to Commissioner (A) with directions to hear appeal on merit after appellants have fulfilled the condition of pre deposit within one month.

Business Auxiliary Service: Appellants were inter alia helping the companies organize meetings of investors. A service of this nature, prima facie, partakes the character of "promotion or marketing of services provided by the client".

Business Auxiliary Service: Since the appellants promote the services rendered by their clients, it is very clear that during the relevant period, the services rendered by the appellant would definitely fall within the category of Business Auxiliary services.

Service Tax: Business auxillary services provided by commission agent: During the period of dispute there was exemption notification No. 13/03-ST dated 20-6-2003 which provides exemption to the business auxiliary services provided by a commission agent from the service tax leviable thereon under sub-section (2) of Section 66 of the Finance Act. The appellant has made a prima facie case in their favour.(Para 2).

Pre-deposit waived and stay granted.
 

Service Tax: "ESS Services" as "Business Auxiliary Services": Scope and liability: The appellants were rendering what was called "ESS Services" on behalf of the above company to cable operators during the above period. The lower authorities classified the said services as Business Auxiliary Services as defined under Section 65(19) of the Finance Act, 1994 and, accordingly, demanded tax on the value of consideration collected by the assessee from their customers. It appears from the records that the classification of "ESS Services" as "Business Auxiliary Services" is consistent with the provisions of the above Agreement. Before the original authority, the assessee did not claim any exemption from payment of tax. But, before the first appellate authority, they claimed such exemption under Notification No. 24/2004-S.T., dated 10-9-2004 which had exempted the value of business auxiliary services from payment of tax for the period prior to 10-9-2004. The claim of the party was under clause (c) of the Notification. This claim was rejected by learned Commissioner (Appeals). In the present appeal, their claim is under clause (d) of the Notification. This is a claim not raised before the lower authorities. The claim under clause (c) of the Notification has, apparently, been abandoned by the assessee. In other words, there seems to be no sustainable challenge against the impugned order.(Para 1).
Pre-deposit ordered.

Business Auxiliary Service: Services rendered by the respondent on behalf of CDA is well structured and codified and it cannot be categorized as 'customer care service'. Maintaining the armed forces is part of the sovereign activity of the State and that it is specious to contend that it is a 'business activity' with an eye on profits, the activities of electoral machinery of the country also cannot be termed as a "business activity”. Preparation of voter list is not a business activity.

Service Tax: Business Auxiliary Services: Benefit of Notification No. 21/2003-Service Tax, dated 20-11-2003: Violation of Principles of Natural Justice: Remand: Prima facie, the benefit of the Notification is applicable as the appellants have received the consideration from abroad in convertible foreign exchange. The findings recorded by the Commissioner that the appellants did not produce evidence is not correct. The reply to Show Cause Notice refers to the evidences and, therefore, the Commissioner ought to have examined the evidence and pronounced the order. Non-examination of the evidences produced violates Principles of Natural Justice. The appellants have now produced the Chartered Accountant's certificate also to support their plea. The matter is remanded to the Commissioner for de novo to re-examine the claim of benefit of Notification in the light of the evidences produced.(Para 5).
Appeal disposed by way of remand.

Service Tax: Business Auxiliary Services: Exemption: Demand is for July 2003 to September 2004 and the Ministry had issued exemption in terms of the Notification No. 25/2004 dated 10-9-2004 wherein 'a service incidental or auxiliary to any activity specified in clause (d)(i) to (iii) of the Notification' is exempted. Commissioner has not given any reason for denying the exemption except to say that the Notification is not applicable. (Para 2,4).
Stay application allowed, pre-deposit waived.

Service Tax: Business Auxiliary Service: Waiver of pre-deposit and stay: It is now on record that the DGST passed an order pursuant to the High Court's direction that the service in question has been held to be taxable as 'Business Auxiliary Service'. This decision of the DGST is being challenged before the competent court, but there is no order of stay of operation of the DGST's decision. The appellants, being members of the association which obtained a judgment from the High Court, are presently bound by the DGST's decision which was taken in pursuance of the High Court's directive. The appellants can hardly claim prima facie case against the above levy of service tax inasmuch as the DGST has declared the service to be taxable as "Business Auxiliary Service". In the present applications, there is no plea of financial hardships.(Para 1).

Partial pre-deposit ordered.
 

Service Tax: Business Auxiliary Services: Scope and liability: Show Cause Notice has clearly brought out the facts leading to suppression and, therefore, it cannot be said that the appellants did not have any intention to evade duty. At least they should have informed the Department of their activity which they have admittedly not done so. Therefore, at this stage, the benefit of time bar cannot be given to them while considering the amounts to be fixed for pre-deposit. In so far as the plea that the activity does not come within the ambit of such Business Auxiliary Services is concerned, this is a contentious issue which has to be considered only at the final stage in the light of the definitions and the judgments.(Para 5).

Pre-deposit ordered.

Service Tax: Service of business auxiliary: Waiver of pre-deposit: In the present case, the applicant entered into an agreement with the ICICI bank to promote their retail finances. Therefore, it is not a fit case for total waiver(Para 5).

Pre-deposit ordered.
 

Facts about the Service Provided : Factual position as to what is the service being rendered is not on record. Matter remanded back.

Service Tax: Business Auxiliary services: Supply of computers on hire basis: The appellants rely on the definition of the said term under Section 65(19) and contend that merely hiring computers would not come within the category of Business Auxiliary services. The issue requires interpretation of the term under the said section. That can be done only at the final stage.(Para 1,3).

Pre-deposit ordered.

Service Tax: Business auxiliary services: Penalty u/s 76: The applicants were functioning from the new premises without a valid registration and they were also not submitting return. They were therefore not entitled for the credit. The Cenvat credit has been taken on the telephone bills of Hutch in the name of different persons and different addresses. The applicant have failed to make out a prima facie case in their favour.(Para 4).

Pre-deposit ordered.

Service Tax: Business Auxiliary Services: Application for early hearing: Application for early hearing is dismissed, as neither has any demand of tax been quantified nor is there any other ground for jumping the queue.(Para 1).

Appeal dismissed.

Consulting Engineer Service: Royalty and Know-how Payment: Revenue has not made out a clear case that the respondents have incurred certain expenditure for availing the services of a consulting engineer from their foreign collaborators. Whole agreement is based on what can be called as a transfer of know-how, involving royalty. While one cannot rule out the possibility of camouflaging certain component of services under the carpet of royalty, it is not the case here as neither the show cause notice issued nor the appeal petition filed by the Revenue alleges before us such a situation.

Service Tax: Tax on royalty: Waiver of pre-deposit: Royalty paid for Technical Know-how involving intellectual property was not taxable under the Finance Act, 1994 prior to 10-9-2004. Even if such service be assumed to be taxable under the said Act, the benefit of exemption under Notification No. 18/04-ST, dated 10-9-04 is available to the appellants in respect of the intellectual property right acquired by them during the period of dispute.(Para 3).

Pre-deposit waived.

Service Tax : Waiver of pre-deposit : The applicants were providing the transport service directly or indirectly to arrange the despatch of the goods and maintained records of receipt and despatch of goods. Therefore, prima facie Applicants are covered under the provisions of Clearing and Forwarding Agent and are liable for Service Tax.(Para 4).

Pre-deposit ordered.
 

Service Tax: Business Auxiliary Service: Scope: Prima facie it is not possible to say that the services rendered by the appellant to its client fall within Business Auxiliary Service. The Business Auxiliary Service is in relation to the promotion or marketing or sale of goods produced or provided by or belonging to the client i.e the person to whom the services were to be provided. The applicant was not dealing with any goods produced or provided by or belonging to its client. Clauses iv, vi and vii of the definition of Business Auxiliary Service relate to procurement of goods or services which are inputs for the client, provision of service on behalf of the client and a service incidental auxiliary to any activity specified in clauses (i) to (vi). Services rendered by the applicants do not disclose that the applicant was procuring the goods or services for its clients for being used as inputs, nor were any services rendered on behalf of the said clients.(Para 2)

Pre-deposit ordered.

Service Tax: Waiver of pre-deposit: C & F agent/ Commission agent: The C & F agent has been defined in the Act "means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent". The work done by the Appellant is as a Commission Agent. He is not concerned with clearing and forwarding operation and he also not a consignment agent.(Para 1,2).

Pre-deposit waived.
 

Clearing and Forwarding Service: To receive such goods from their principal, store them in their godown, clear them to buyers, collect payments for the sale and transmit the same to the principal after taking their commission. This activity would attract the definition of "Clearing and Forwarding Agent".

Commission Agent Vs Consignment Agent: The appellant's agents were not physically dealing with goods. They were only identifying customers, collecting purchase orders and awarding such orders to the appellants against payment of commission. There being no dispute of this fact, no difficulty in identifying the appellant's agents as "Commission Agents".

Service Tax: Waiver of pre-deposit: As per the Section 65(106) of Finance Act, 1994 technical testing & analysis in relation to human beings or animal is exempted. Appellant are collecting the samples and also doing initial testing. Further, tested samples were sent to Dr. Lal PathLabs Pvt. Ltd. As the appellants are conducting testing also in respect of samples. Prima facie, appellants had a strong case in their favour.(Para 2).

Stay petition allowed.
 

Service Tax:Waiver of pre-deposit of duty and penalty: In this case, the transfer of technology was effected during the year 1995-96. This fact was not disputed by the Revenue, therefore, prima facie, the applicants have a strong case as the provision of service tax was not in force at that time.(Para 2).

Pre-deposit waived.
 

Service Tax: Business auxillery services: Appeal under Article 226 of the Constitution of India: Registrar and Share Transfer Agent is a service rendered which is in the nature of incidental or auxiliary support service rendered in the contract of sale of goods (securities) belonging to the client(Para 7). Interference under Article 226 of the Constitution of India, where the validity of a show cause notice is under challenge, is normally, limited to cases where the show cause notice as issued, is without jurisdiction or is tainted with malice, as these are matters which are required to be examined by the competent statutory authorities. It cannot be said that the show cause notice issued by the 2nd respondent on 3-1-2005 is without jurisdiction. No mala fides are attributed to the 2nd respondent. Since the applicability or otherwise of Section 65(19)(iv) of Finance Act, 2003 to the services rendered by the petitioner as Registrar and Transfer Agent during the period 1-7-2003 to 31-1-2004 is a mixed question of fact and law, this issue and the question whether the petitioner is entitled for exemption under Central Government Notification No. 25/2004-Service Tax dated 10-9-2004, are all matters for 2nd respondent to decide after taking into consideration the explanation furnished by the petitioner in this regard. The show cause notice issued by the 2nd respondent does not call for interference by this Court under Article 226 of the Constitution of India.(Para 11,12). 

Service Tax: Business auxiliary services: Demand: Under the alleged franchisee agreement, the appellants are rendering service to their principal by collecting blood samples and after carrying out some procedural treatment, transmitting the same to them. There is prima facie, no any illegality in the impugned order.(Para 3).

Pre-deposit ordered.

Service Tax: Services of consulting engineer: Demand: Royalty received is not liable for service tax. In view of the fact that service tax on intellectual property services (royalty etc.) has come under the service tax for the first time in the budget of 2004 only. Matter remanded for reconsideration(Para 4).

Import of Service: Rule 6(1) of the Service Tax was enacted with effect from 28-2-1999, therefore, even there is a liability on the part of the appellants to have discharged the obligations under the Service Tax Law for the period prior to 28-12-1999, the appellants cannot be found to be having any intention of misleading the Department and therefore the charges of suppression with an intention to evade payment of tax cannot be invoked.

Appellants are not required to discharge any service as consulting engineers under the provisions of the Service Tax Law and/or required to file declaration or have any application for discharge of liability to duty. They are, therefore, not liable for any penalty in terms of Section 76.