2008 (9) TMI 863 - Commissioner - Service Tax

Appellant found exempt from service tax on activities. Penalties overturned, appeal allowed.

IN RE : JANKALYAN NAGARI SAHAKARI PATSANSTHA LTD.

IN RE : JANKALYAN NAGARI SAHAKARI PATSANSTHA LTD. - 2009 (15) S.T.R. 603 (Commr. Appl.) Issues Involved:1. Classification of services provided by the appellant.2. Applicability of service tax under 'Banking and Other Financial Services.'3. Eligibility for exemption under Notification No. 6/2005-S.T.4. Requirement for registration and penalties for non-registration.5. Allegations of suppression and fraud.Issue-wise Detailed Analysis:1. Classification of Services Provided by the Appellant:The appellant contended that they were not providing services classified under 'Banking and Other Financial Services' as defined in Section 65(12) of the Finance Act, 1994. The lower authority, however, classified their services under this category and confirmed the service tax demand. The appellant argued that they were a co-operative society, not a banking company, and thus not regulated by the Reserve Bank of India (RBI) Act. The judgment concluded that the appellant's activities did not fall under the definition of 'Banking and Other Financial Services' as they were not engaged in issuing pay orders, demand drafts, cheques, or other services regulated under the RBI Act.2. Applicability of Service Tax under 'Banking and Other Financial Services':The Show Cause Notice (SCN) alleged that the appellant was engaged in providing services of 'banking and financial institutions' and charged commissions liable for service tax. However, the judgment found that the appellant, being a non-banking institution, did not meet the criteria for the services listed under the 'Banking and Other Financial Services' definition. The appellant's services were not regulated by the RBI Act, and they did not provide services such as issuing pay orders, demand drafts, or cheques as required under the definition.3. Eligibility for Exemption under Notification No. 6/2005-S.T.:The appellant claimed eligibility for exemption under Notification No. 6/2005-S.T., arguing that they did not provide branded services and did not exceed the taxable service threshold of Rs. 4 lakhs in any financial year. The judgment supported this contention, noting that the appellant was not providing 'branded services' and thus was eligible for the threshold exemption limit.4. Requirement for Registration and Penalties for Non-Registration:The appellant argued that they were not required to register, pay service tax, or file returns as their services were not taxable. The lower authority imposed penalties for non-registration under Section 77 of the Act, despite the SCN not proposing such penalties. The judgment found that the lower authority had traversed beyond the allegations in the SCN, which is not permissible by law. Consequently, the penalties for non-registration were set aside.5. Allegations of Suppression and Fraud:The appellant contended that they were under a bona fide belief that their services were not taxable, and thus allegations of suppression and fraud were unfounded. The judgment agreed, noting that the appellant had voluntarily paid the service tax before the issuance of the SCN. The judgment referenced decisions from the Tribunal and the Apex Court, which supported the appellant's case that no suppression or fraud was involved.Conclusion:The judgment concluded that the appellant's activities did not fall under 'Banking and Other Financial Services,' and thus, no service tax was payable. The penalties imposed and the interest confirmed by the lower authority were set aside. The appeal was allowed with consequential relief to the appellant.