Custom, Excise & Service Tax Tribunal
The Rasipuram Agricultural Producers ... vs Salem on 13 March, 2024
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL,
SOUTH ZONAL BENCH, CHENNAI
COURT HALL No.III
SERVICE TAX APPEAL No.40470 OF 2015
(Arising out of Order-in-Appeal No.204/2014-ST dated 04.12.2014 passed by
Commissioner of Central Excise (Appeal-I Coimbatore) Circuit Office @ Salem
Commissionerate, No.1, Foulks Compound, Anai Road, Salem 636 001)
The Rasipuram Agricultural Producers
Co-op. Marketing Society Ltd. (Sl.No.318) .... Appellant
No.18, Chinna Mettu Street,
Rasipuram-637 408.
Versus
The Commissioner of GST & Central Excise, ...Respondent
Salem Commissionerate
No.1, Foulkes Compound, Anai Medu,
Salem 636 001.
APPEARANCE :
Mr. Mira Aurobindo Cumar, Advocate
For the Appellant
Mr. Harendra Singh Pal, Assistant Commissioner (A.R)
For the Respondent
CORAM :
HON'BLE MS. SULEKHA BEEVI. C.S., MEMBER (JUDICIAL)
HON'BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL)
Date of Hearing :13.03.2024
Date of Decision : 13.03.2024
2
Service Tax Appeal No. 40470 of 2015
FINAL ORDER No.40290/2024
ORDER :[Per Ms. SULEKHA BEEVI. C.S.] Brief facts are that the appellant is a Co-operative Society and is conducting auction of various commodities for which they receive consideration in the form of commission / service charges. They also provide place for storage of goods, apart from providing post-auction services like collection or distribution of auctioned goods etc. The department was of the view that the said activity is covered under the definition of 'Auctioneer's Service' under Section 65 (7a) and Section 65 (105) (zzzr) of the Finance Act, 1994.
2. Further, it appeared to the Department that appellant had paid freight in respect of movement of ration goods (Public Distribution System) to Fair Price Shops and also for purchase of goods to the society. The department was of the view that the appellant provided Goods Transport Agency Services falling under Section 65 (50b) read with Section 65 (105) (zzp) of the Finance Act, 1994.
3. It also appeared to the department that the appellant was arranging gold loan facility to its members and collecting appraising charge of Rs.3/- on the amount sanctioned. The department was of the view that the said activity would fall under 'Business Auxiliary Services'. Show cause notice was issued proposing to demand service tax on the above categories of services and for imposing penalties. After due process of law, the original authority confirmed the demand, interest and imposed penalties. Aggrieved by such 3 Service Tax Appeal No. 40470 of 2015 order, the appellant filed appeal before Commissioner (Appeals) who upheld the same. Hence this appeal.
4. Ld. Counsel Sri Mira Aurobindo Cumar appeared and argued for the appellant. It is submitted that the issue stands covered in the appellant's own case for a different period whereby the Tribunal has held that the activity carried out by the appellant in the nature of collecting cost for sale of agricultural products does not fall within definition of "Auctioneer's Service" as it is done for the benefit of the members of the society. There is no service provided by appellant to another. Further, in regard to Goods Transport Agency Service, it is submitted that the appellant did not provide any transportation service but merely paid the freight charges for transportation of goods for Public Distribution System.
5. In regard to 'Business Auxiliary Service', it is submitted by the counsel that appellant was arranging loans for its members and therefore is no relationship of service provider and service recipient. It is prayed that appeal may be allowed.
6. Ld. A.R Sri Harendra Singh Pal appeared for the Department. He submitted that appellant was arranging loans from the co-operative societies and hence liable to pay tax. He reiterated the findings of the impugned order.
7. Heard both sides. The very same issue was analysed by the Tribunal in the appellant's own case wherein demand was raised under 'Auctioneer's Service', 'GTA service' and 'Business Auxiliary Service'. The Tribunal set aside the demand under 'Auctioneer's 4 Service Tax Appeal No. 40470 of 2015 Service and 'Business Auxiliary Service'. However, the demand under GTA service was upheld partly and remanded the matter to the original authority. Following the decision in the appellant's own case, we hold that demand under Auctioneer's Service and Business Auxiliary Service requires to be set aside which we hereby do. The demand in respect of GTA service is remanded to the adjudicating authority to consider in accordance with the decision rendered by Tribunal in appellant's own case. Relevant para of the decision in the appellant's case vide Final Order No.40654 dt. 4.8.2024 reads as under :
"13.1 The appellant has also prayed for waiving the penalties imposed on them on the ground that the issue being one of interpretation of law, the non-payment of Service Tax was under
a bona fide belief, thus arguing that there was no suppression or intention to evade duty on their part. It has also been urged by the appellant that the Revenue has not discharged any proof to warrant the levy of penalty. 13.2 In the facts and circumstances of the present case, and also following the ratio of the Final Order of this Bench (supra) in the appellant's own case, we deem it fit to set aside the imposition of penalty under Section 76 of the Finance Act, 1994. However, the proportionate penalties insofar as GTA service alone is concerned, imposed under Section 77(1)(a) and 77(2) ibid., for non-obtaining Service Tax Registration as stipulated under Section 69 and for non-furnishing of statutory ST-3 returns as required under Section 70 respectively, are sustained.
14. The appeal is disposed of on the above terms."
8. The impugned order in respect of demand of service tax, interest and penalties imposed with regard to 'Business Auxiliary Service' and 'Auctioneer's Service' is set aside entirely. The penalties imposed with regard to GTA Services are set aside. The matter with regard to liability to service tax under GTA service is remanded to 5 Service Tax Appeal No. 40470 of 2015 the adjudicating authority. In case, the appellant is liable to pay service tax under the said category, the appellant has to pay service tax along with interest, if any. The appeal is partly allowed with consequential reliefs and partly remanded to the adjudicating authority as above.
(Dictated and pronounced in court)
sd/- sd/-
(VASA SESHAGIRI RAO) (SULEKHA BEEVI. C.S)
Member (Technical) Member (Judicial)
gs