2023 (8) TMI 187 - AT - Service Tax

Tribunal rules in favor of appellant for service tax exemption under Notification No. 6/2005-ST

Venus Corporation Versus Commissioner of CGST & Central Excise, Ahmedabad

The Tribunal ruled in favor of the appellant, finding that their Commission Agent services qualified for exemption under Notification No. 6/2005-ST as ... SSI Exemption - use of brand name of another person - Commission Agent Service - Case of appellant is that service of Commission Agent is on behalf of the principal, cannot be treated as branded service as for providing a Commission Agent Service there is no need of using the brand name of their client - benefit of exemption under N/N. 6/2005-ST denied - HELD THAT:- The appellant has provided Commission Agent service to their clients. The appellant as a commission by mediates between their client and customer of the client, while providing commission agent service and does not use the brand name of the service providers for the reason that they are providing service on behalf of the client and there is no need of brand name for providing service to the same client. Therefore, the department without any basis made a bald allegation that appellant is using brand name for providing Commission Agent service. This identical issue has been considered in the case of M/S. REETIKA CABLE VERSUS COMMISSIONER OF CGST, CHANDIGARH [2021 (7) TMI 887 - CESTAT CHANDIGARH] - on perusal of this decision, it is settled that in case of providing a Commission Agent servicer, is not a branded service. Thus, it can be seen that Commission Agent service provided by the appellant cannot be treated as branded service. Accordingly, the exemption Notification No. 6/2005-ST cannot be denied - the demand confirmed by the lower authorities denying exemption Notification 6/2005-ST is without any basis - appeal allowed. Issues Involved:1. Eligibility for small scale service provider exemption under Notification No. 6/2005-ST.2. Nature of service provided (branded or non-branded).3. Applicability of extended period of limitation.4. Correctness of best judgment assessment under Section 72 of the Finance Act, 1994.5. Liability to pay service tax on the gross value of services.6. Entitlement to Cenvat credit of service tax paid by MSO.Summary:1. Eligibility for Small Scale Service Provider Exemption:The appellant argued that the Commission Agent service provided on behalf of their clients does not require the use of the client's brand name, thus qualifying for exemption under Notification No. 6/2005-ST. The Tribunal found that the appellant provided Commission Agent services without using the brand name of the service providers. The department's allegation of using a brand name was deemed baseless. Citing precedent cases like Reetika Cable and Heaven Vision, the Tribunal concluded that the appellant's services are not branded, thus eligible for the exemption.2. Nature of Service Provided (Branded or Non-Branded):The Tribunal referenced the case of Blue Star Communication, where it was established that services provided without the intention of indicating a brand connection are non-branded. The Tribunal reiterated that the appellant's services do not involve the use of a brand name, aligning with the criteria set by the Hon'ble Apex Court in cases like RDB Industries and Maheshwari Industries.3. Applicability of Extended Period of Limitation:The Tribunal held that the appellant was under a bona fide belief that they were not liable to pay service tax due to the exemption. Given the industry confusion and the appellant's genuine belief, the extended period of limitation was deemed non-invocable, and no penalties were imposed.4. Correctness of Best Judgment Assessment:The Tribunal found that the assessment under Section 72 of the Finance Act, 1994, was incorrectly based on data supplied by the MSO without giving the appellant adequate time to provide their data. The Tribunal directed the appellants to submit their data within 30 days for a correct assessment by the adjudicating authority.5. Liability to Pay Service Tax on Gross Value of Services:The Tribunal confirmed that the appellant is liable to pay service tax on the gross value of the services received, as per Section 67 of the Finance Act, 1994. This aligns with the Hon'ble Apex Court's interpretation in Intercontinental Consultants and Technocrats Pvt. Ltd.6. Entitlement to Cenvat Credit:The Tribunal held that the appellant is entitled to Cenvat credit for the service tax paid by the MSO, as the signal provided by the MSO is considered an input service for the appellant.Conclusion:The Tribunal set aside the impugned order and allowed the appeal, remanding the matter back to the Adjudicating Authority for quantification of demand within the period of limitation. The appellant was directed to provide necessary data within 30 days for a correct assessment. The appeal was allowed by way of remand.