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of <h1>Tribunal rules in favor of appeals on Service Tax but upholds demand on Corporate Guarantee Commission</h1> <h3>Olam Agro India Ltd. Versus C.C. E-Delhi-II</h3> The Tribunal partially allowed the appeals, setting aside the Service Tax demand on Agency Commission while upholding the demand on Corporate Guarantee ... Business Auxiliary Service - Levy of Service Tax - Agency Commission - Corporate Guarantee Commission - Held that:- The definition of ‘Business Auxiliary Service’ is very wide and it covers all the activities which promotes business of clients. The services detailed under clause iv of Section 65 (105) (zzb) of the Act made taxable from 10/09/2004 - the nature of corporate guarantee as well as of bank guarantee is one and the same i.e. for facilitation of the lending facilities - The copies of the said debit notes clearly indicate the transactions with regard to lending facilities in India and therefore through Corporate Guarantee Commission the appellant are chargeable to Service Tax. And the commission paid was taxable under ‘Business Auxiliary Service’. Merely because the name of the guarantee has been changed from ‘Bank’ to ‘Corporate’ it cannot be said that it won’t fall under ‘Business Auxiliary Service’ as defined under Section 65 (105) of the Finance Act, 1994 - demand of Service Tax on the Corporate Guarantee Commission upheld. Agency Commission - benefit of N/N. 13/2003-ST dated 20/06/2003 (as amended) - Held that:- This notification exempts Service Tax payable on Commission Agent Services in relation to agricultural produce. The lower Authorities have not extended the benefit while taking the view that the committee rice is not covered under the said notification but in the case of Kohinoor [2017 (3) TMI 1289 - CESTAT NEW DELHI], the Tribunal has taken the view that commission paid for export of rice to Commission Agents will be entitled to benefit of the Notification, particularly in view of the Circular issue by the Board dated 26/05/2011 - the demand for Service Tax on Agency Commission set aside. Appeal allowed in part. Issues:1. Challenge to levy of Service Tax on Agency Commission for export of rice.2. Challenge to levy of Service Tax on Corporate Guarantee Commission for facilitating loan procurement.3. Applicability of exemptions under Notification No. 13/2003-ST.4. Interpretation of Business Auxiliary Service under Section 65(105) of the Finance Act, 1994.5. Examination of Tribunal decisions in similar cases.6. Consideration of time bar objections raised by the appellant.Analysis:1. Agency Commission:The appellant contested the Service Tax demand on Agency Commission paid to foreign commission agents for exporting rice. The appellant relied on Notification No. 13/2003-ST, citing exemptions for Commission Agent Services related to agricultural produce. The appellant referenced a Tribunal decision supporting exemption for rice exports. The Tribunal agreed with the appellant, setting aside the Service Tax demand based on the Circular clarifying that rice falls under agricultural produce exemptions.2. Corporate Guarantee Commission:Regarding the Corporate Guarantee Commission paid to the parent company in Singapore for facilitating loan procurement, the appellant argued that it did not constitute procurement of services. The respondent justified the Service Tax levy under Business Auxiliary Service, emphasizing the service provided by the parent company for the appellant's benefit. The Tribunal upheld the Service Tax demand on Corporate Guarantee Commission, stating that the nature and purpose of the guarantee transactions made it taxable under Business Auxiliary Service.3. Exemptions and Interpretation:The Tribunal examined the definitions and provisions of Business Auxiliary Service under Section 65(105) of the Finance Act, 1994. It considered the applicability of Notification No. 13/2003-ST and related Circulars in determining the taxability of the commissions in question. The Tribunal highlighted the broad scope of Business Auxiliary Service and the conditions for taxable services provided from outside India and received in India.4. Tribunal Decisions and Precedents:Both parties referenced Tribunal decisions such as Kohinoor Foods Ltd. and Abdullabhai Abdul Kader cases to support their arguments. The Tribunal analyzed these precedents to determine the relevance and applicability to the present case. It relied on the interpretations and clarifications provided in the Circulars and Notifications to make its decision on the Service Tax liabilities.5. Time Bar Objections:The appellant raised objections on the grounds of time bar, which were addressed by the adjudicating authority in the impugned orders. The Tribunal considered these objections in the context of the overall arguments presented by both sides during the proceedings. The time bar issue was discussed as part of the comprehensive analysis of the case.In conclusion, the Tribunal partially allowed the appeals, setting aside the Service Tax demand on Agency Commission while upholding the demand on Corporate Guarantee Commission. The judgment was pronounced on 31/07/2018, after thorough consideration of the legal arguments, precedents, and relevant provisions of the Finance Act, 1994.
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