2011 (9) TMI 736 - AT - Service Tax

Ex-servicemen cooperatives exempt from service tax as non-commercial entities under Finance Act.

The Tribunal held that the appellants, cooperative societies for ex-servicemen, were not liable to pay service tax as they did not qualify as commercial ... Demand - Security agency - Time limitation - In reply to the notice, the appellants denied that they were a security agency as defined under Section 65(94) of the Finance Act inasmuch as they were not a commercial concern engaged in any activity for profit - In the process, they manufactured surplus bricks than the actual number required by them for their own use and inasmuch as there was danger of these bricks getting deteriorated they disposed of the same from time to time to the outside parties - Hon’ble Supreme Court decision discussed by us though rendered under the Sales Tax Act, the details and circumstances for holding the organisation as commercial concern or otherwise, throw light on the issue as to what can be held to be regular business activity so as to be liable to tax - Held that: the said declaration of law would be applicable only for the period prior to 18-4-2006 inasmuch as the definition of ‘security agency’ thereafter was amended and the security service provided by any person were made liable to service tax - This amendment in the definition also supports our view that prior to 18-4-2006 legislature intended to tax security services provided by only commercial concern and not by organisations other than commercial concerns - Decided in favor of the assessee Issues Involved:1. Liability of service tax on security agency services.2. Definition and interpretation of 'commercial concern' under Section 65(94) of the Finance Act, 1994.3. Applicability of precedent decisions and judicial interpretations.4. Consideration of limitation period for raising service tax demands.Detailed Analysis:1. Liability of Service Tax on Security Agency Services:The primary issue was whether the appellants, engaged in providing security services, were liable to pay service tax under Section 65(105)(w) of the Finance Act, 1994. The authorities confirmed the demand for service tax, invoking the extended period of limitation, on the grounds that the appellants provided taxable 'security agency' services.2. Definition and Interpretation of 'Commercial Concern':The key point of contention was whether the appellants, primarily registered as cooperative societies or associations of ex-servicemen, could be classified as a 'commercial concern' under Section 65(94) of the Finance Act, 1994. The definition of 'security agency' before 18-4-2006 included only 'commercial concerns.' The appellants argued they were not engaged in any profit-making activity and thus did not fit the definition of a commercial concern.3. Applicability of Precedent Decisions and Judicial Interpretations:The appellants relied on several Tribunal decisions, including:- Ex-Services Security Co-operative Society Ltd. v. C.C.E., Belgaum: Held that a cooperative society for the welfare of ex-servicemen is not a commercial concern.- C.C.E., Mangalore v. Employ Me: Stated that an organization imparting training and finding placements without a profit motive is not a commercial concern.- C.C.E., Jaipur v. Sikar Ex-Serviceman Welfare Coop. Society Ltd. and Kerala State Ex-service League v. C.C.E., Thiruvananthapuram: Both decisions supported that welfare associations for ex-servicemen are not commercial concerns.The Tribunal also referenced the Supreme Court decision in Additional CIT v. Surat Silk Cloth Manufacturers Association, which emphasized that an organization's primary objective of welfare, even if some profit arises, does not alter its non-commercial character.4. Consideration of Limitation Period for Raising Service Tax Demands:The appellants challenged the demand on the grounds of limitation, asserting that the extended period for raising the demand was not justified. However, since the Tribunal decided in favor of the appellants on the merits, it did not address the limitation issue in detail.Conclusion:The Tribunal concluded that the appellants, being cooperative societies or associations formed for the welfare of ex-servicemen, could not be classified as commercial concerns. Therefore, they were not liable to pay service tax for the period prior to 18-4-2006. The Tribunal distinguished this case from the Punjab Ex-Servicemen Corporation v. C.C.E., Chandigarh, which supported the revenue's view, noting that the latter did not convincingly negate the precedent decisions favoring the appellants.The Tribunal's decision emphasized that the legislative intent before 18-4-2006 was to tax security services provided only by commercial concerns. Consequently, all appeals were allowed, and the impugned orders were set aside, granting consequential relief to the appellants.