2018 (4) TMI 957 - AT - Service Tax

Tribunal upholds Service Tax demand on government undertaking acting as Selling Agent for scrap disposal

M/s MSTC Versus CCE Delhi

The Tribunal upheld the demand for Service Tax on commission received by a Government undertaking acting as a 'Selling Agent' for scrap disposal, ruling ... Business Auxiliary Services - Commission on selling Agent - N/N. 13/2003-ST dated 20.06.2003 - Held that: - Notification No. 13/2003-ST dated 20.06.2003 granted exemption to Business Auxiliary Service provided by a “Commission Agent”. For the purpose of this Notification, “Commission Agent” was defined as “commission agent” means a person who causes sale or purchase of goods, on behalf of another person, for a consideration which is based on the quantum of such sale or purchase.” - the appellant’s activity will be liable to payment of Service Tax during the disputed period but will not be eligible for the benefit of the Notification No.13/2013. Extended period of limitation - Held that: - the appellant has failed to file the statutory return under Section 70. The details of commission and other details were also submitted only during investigation - Revenue was justified in raising a demand within the period of five years. Appeal dismissed. Issues:1. Applicability of Notification No.13/2003-ST dated 20.06.2003 to exempt Business Auxiliary Services provided by a Commission Agent.2. Classification of the appellant's activity as a Commission Agent.3. Invocation of the extended time limit under Section 73 for raising a demand.Analysis:1. The appeal challenged an Order-in-Appeal regarding the non-payment of Service Tax on commission received by a Government undertaking acting as a 'Selling Agent' for scrap disposal. The Revenue issued a Show Cause Notice proposing a demand of Service Tax. The appellant contended that Notification No.13/2003-ST exempted Business Auxiliary Services provided by a Commission Agent during the relevant period. However, the adjudicating authority held that the appellant's activity did not fall under the definition of a Commission Agent as per the notification.2. The appellant argued that their activity of selling scrap on behalf of government departments, earning commission based on sale proceeds, should classify them as a Commission Agent eligible for the notification's benefit. The Revenue justified the demand, stating that the appellant's role as a selling agent did not align with the definition of a Commission Agent. The Tribunal examined the Selling Agency Agreement and concurred with the adjudicating authority's findings, determining the appellant's liability for Service Tax but not eligible for the notification's exemption.3. Regarding the invocation of the extended time limit under Section 73, the Revenue raised a demand beyond the normal one-year period, justifying it by the appellant's failure to file statutory returns and disclose material facts timely. The Tribunal upheld the demand within the five-year limit, considering the appellant's liability for Service Tax established. Consequently, the impugned order was upheld, and the appeal was dismissed on 18.04.2018.