2018 (12) TMI 1113 - AT - Service Tax

Tribunal reclassifies service, rejects tax demand, finds time-barred claims

M/s. Benchmark Services Versus Commissioner of GST & Central Excise Coimbatore

The Tribunal ruled in favor of the appellant, determining that the activity of collecting amounts from customers should be classified as Recovery Agent ... Classification of services - Business Auxiliary Service or not - rendering activities of collection of instalment / loan from the customers of the bank - time limitation - Held that:- Undisputedly appellants are acting in the capacity of collecting agents for ICICI Bank and they collect the dues payable by customers to such Banks on behalf of the Banks - As per the agreement dated 28.1.2005, the appellant has been appointed as mere collection agent. The agreement itself is named as ‘Collection Agreement’. The scope of the work is to act as collection agents of ICICI. Such activity would definitely fall under ‘Recovery Agent Service’. The demand under BAS for the period after 1.5.2006 therefore cannot sustain, the demand of service tax under BAS after 1.5.2006 is therefore set aside. Time Limitation - Held that:- Though the department alleges that the appellant is guilty of suppression of facts, there is no evidence brought forth as to what is the positive act committed on the part of the appellant. The various documents show that the appellants have furnished the entire documents as requested by the department. In fact, the demand has been quantified basing upon the document produced by the appellant. There is no case for the department that appellant had been maintaining parallel records so as to evade payment of service tax - the department has failed to establish suppression of facts with intent to evade payment of service tax so as to invoke extended period. The appellant therefore succeeds on the ground of limitation. Demand of service tax - reimbursable expenses - Held that:- The appellant has stated that these were expenses incurred by the appellant for obtaining demand drafts, courier expenses, travelling expenses etc. These are actual expenses incurred by the appellant which would fall under reimbursable expense - the demand on reimbursable expense cannot sustain and requires to be set aside. The impugned orders are modified to the extent of setting aside the demands on BAS prior to 1.5.2006 on the ground of being time-barred - After 1.5.2006, the demand is set aside since the activity does not fall under BAS - appeal allowed - decided in favor of appellant. Issues:1. Whether the activity of collecting amounts from customers falls under Business Auxiliary Service (BAS) or Recovery Agent Service.2. Whether the demand for service tax on reimbursable expenses is valid.3. Whether the demands made invoking the extended period are time-barred.Analysis:Issue 1:The appellant argued that the activity of collecting amounts from customers should be classified as Recovery Agent Service, not BAS. The Tribunal analyzed the definitions of BAS and Recovery Agent Service. It was noted that the appellant acted as a collection agent for ICICI Bank, which falls under Recovery Agent Service. The demand for service tax under BAS after 1.5.2006 was set aside as incorrect based on the nature of the services provided.Issue 2:Regarding the demand for service tax on reimbursable expenses, the appellant contended that these expenses were not subject to service tax based on a Supreme Court decision. The Tribunal agreed with the appellant, setting aside the demand on reimbursable expenses as they were considered actual expenses incurred by the appellant.Issue 3:The appellant raised the issue of limitation, arguing that the demands made invoking the extended period were time-barred. The Tribunal considered the appellant's submission that they had sought clarification from the department regarding the levy of service tax and had not received a response. The Tribunal found that the department failed to establish suppression of facts to invoke the extended period, setting aside the demands made under the extended period as time-barred.In conclusion, the Tribunal modified the impugned orders by setting aside the demands on BAS prior to 1.5.2006 as time-barred and after 1.5.2006 as the activity did not fall under BAS. The demand on reimbursable expenses was entirely set aside. The appeals were allowed accordingly, with any consequential relief.