2018 (7) TMI 439 - AT - Service Tax

Tribunal upholds Service Tax liability on commissions under Business Auxiliary Services, waives penalties

CCE, Jaipur-I Versus M/s Medisales Consultants And 4 Others Vice-Versa

The Tribunal upheld liability for Service Tax on commissions received by the entities under Business Auxiliary Services, rejected the clubbing of ... Business Auxiliary Services - The investigation conducted sought to establish that Shri Mahender Jain was the de-facto owner of all the five firms, and hence, all five units are to be considered to be one unit being run by Shri Mahender Jain - Benefit of N/N. 06/2005-ST dated 01.03.2005 - Held that:- The benefit of N/N. 6/2005 is available to small service providers whose turnover is within the threshold specified in the Notification. In the present case, all the five firms have their independent existence in the eyes of laws. The commissions received from various manufacturers have been accounted in their respective books independently. Consequently, the benefit of the threshold exemption cannot be denied to any of the five firms and turnover over and above the exemption is liable for payment of Service Tax under the category of “Business Auxiliary Services”. The ends of justice will be met if the Service Tax as requantified is paid along with applicable interest - appeal disposed off. Issues:- Interpretation of Business Auxiliary Services under Section 65(19) of the Finance Act, 1994- Clubbing of turnover for multiple firms under common ownership- Applicability of Notification No. 6/2005 for threshold exemption- Challenge of penalties by RevenueInterpretation of Business Auxiliary Services under Section 65(19) of the Finance Act, 1994:The case involved five entities engaged in procuring orders from the Rajasthan Government for medicine manufacturers, receiving commissions for related services. The Department argued these activities fell under 'Business Auxiliary Services' (BAS) under Section 65(19) of the Finance Act, 1994, subject to Service Tax. The original authority concluded that one entity should receive threshold exemption under Notification No. 6/2005, while the appellate authority held differently, clubbing the turnover of only two entities. The Tribunal determined that all five entities were independently accountable, rejecting the Revenue's argument to club their turnovers. The Tribunal upheld liability for Service Tax on commissions received by all five entities under BAS.Clubbing of turnover for multiple firms under common ownership:The Department alleged that all five entities were essentially one unit under the de-facto ownership of an individual. However, the Tribunal found that each entity had separate legal existence and maintained independent accounting of commissions received. The Tribunal ruled that the turnover of each entity should be considered individually for Service Tax assessment, denying the Revenue's plea to club the turnovers of all units. The Tribunal emphasized the independent legal status of each entity and directed the original authority to reassess the demands separately for each firm.Applicability of Notification No. 6/2005 for threshold exemption:The issue of whether all entities qualified for the threshold exemption under Notification No. 6/2005 was pivotal. The Tribunal determined that since all five entities had distinct legal identities and maintained separate accounts for commissions, they were entitled to the benefit of the exemption individually. Rejecting the Revenue's argument to deny the exemption based on common ownership, the Tribunal upheld that each entity could avail of the threshold exemption for Service Tax liability on turnover exceeding the exemption limit.Challenge of penalties by Revenue:The Revenue challenged the penalties imposed, contending that they should be upheld. However, the Tribunal waived off penalties under Section 80 of the Finance Act, 1994, on the condition of payment of the recalculated Service Tax and applicable interest. The Tribunal considered the circumstances and decided that justice would be served by waiving the penalties, emphasizing compliance with tax payment and interest obligations.In conclusion, the Tribunal upheld liability for Service Tax on commissions received by the entities under Business Auxiliary Services, rejected the clubbing of turnovers, affirmed the applicability of the threshold exemption individually to each entity, and waived penalties subject to tax and interest payment.