2008 (5) TMI 24 - AT - Service Tax

Tribunal remands case for fresh adjudication, Trust to present evidence,

The Tribunal allowed the appeal by remanding the case back to the original authority for a fresh adjudication. The original authority was directed to ... Activity of sale of petroleum products by appellants on behalf of Bharat Petroleum Corporation Ltd.- respondents claim itself to be a Trust functioning without profit motive – appellate authority held that the Trust was not a commercial concern & hence exempted from tax under Business Auxiliary Service - provisions of Trust Deed require to be examined for the purpose of determining as to whether the respondents can be treated as a commercial concern – matter remanded for de novo adjudication Issues:1. Whether the Trust is exempt from paying Service tax in the category of Business Auxiliary Service (BAS).2. Whether the Trust can claim exemption under Notification No. 13/2003-S.T. for a part of the relevant period.3. Whether the Trust qualifies as a non-profit-motivated entity and hence not liable to pay Service tax.Analysis:1. The Trust claimed to be functioning without a profit motive and successfully obtained relief from the lower appellate authority against the Service tax demand and penalties imposed by the original authority. The appellate authority exempted the Trust from paying Service tax in the category of BAS, considering it as not a commercial concern. The Revenue appealed this decision.2. The Trust alternatively claimed exemption under Notification No. 13/2003-S.T. for a part of the period in question. The Finance Act, 1994, covered services related to promotion, marketing, or sale of goods under BAS. The Trust argued that they were eligible for the exemption under the said Notification until its amendment on 9-7-2004, which limited the exemption to commission agents dealing with agricultural produce. This alternative claim was not raised before the lower authorities.3. The Trust contended that they were a non-profit-motivated entity and hence not a commercial concern liable to pay Service tax in the category of BAS. The only document provided by the Trust was a Deed of Trust dated 27-12-1999. The lower authorities did not thoroughly examine the provisions of this Deed to determine the commercial nature of the Trust's activities. The Trust's engagement in the sale of petroleum products was considered a commercial activity. The case was deemed to require reevaluation by the original authority to properly assess the Trust's claims and nature of activities, allowing them to present evidence and be heard.Conclusion:The Tribunal allowed the appeal by remanding the case back to the original authority for a fresh adjudication. The original authority was directed to reconsider the Trust's claims and pass a reasoned order after providing them with a fair opportunity to present evidence and arguments.