Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs Ebay India Pvt. Ltd on 17 January, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II APPEAL No.ST/36/08 (Arising out of Order-in-Original No.15/STC/SJS/07-08 dated 05/11/2007/ Order-in-Review No.01/Review/CCO-I/MCX/2008 dated 01/02/2008 passed by Commissioner of Service Tax, Mumbai) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) Honble Mr. Anil Choudhary, Member (Judicial) 1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================
Commissioner of Central Excise, Mumbai Appellant Vs. eBay India Pvt. Ltd., Respondent Appearance:
Shri.V.K. Agarwal, Addl. Comm. (AR) for appellant None - Adjournment Request from respondent CORAM:
Honble Mr. P.R.Chandrasekharan, Member (Technical) Honble Mr.Anil Choudhary, Member (Judicial) Date of Hearing : 17/01/2014 Date of Decision : 17/01/2014 ORDER NO Per: P.R.Chandrasekharan
1. Revenue is in appeal against Order-in-Original No.15/STC/SJS/07-08 dated 05/11/2007 passed by the Commissioner of Service Tax, Mumbai.
2. Bazee Com (India) Pvt. Ltd. are engaged in providing e-commerce transaction services through web site which facilitates sale and purchase of goods over internet and they were charging a commission from sellers for successful e-commerce transactions. In addition they were also charging a listing fee towards banner advertising on the web site wherein the advertisements were flashed on the web site without any creative work involved. The department was of the view that the activity undertaken by the appellant would be exigible to service tax under the category of online data access and/or retrieval service as defined in Section 65 (105) (zh) of the Finance Act, 1994 and accordingly, a show-cause notice dated 27/01/2005 was issued to the appellants demanding service tax of Rs.80,85,217/- for the period July 2001 to August 2004. The said notice was adjudicated vide the impugned order wherein the Commissioner held that the services undertaken by the appellant are classifiable under Business Auxiliary Services (BAS) and they have to discharge service tax under the said category with effect from 01/07/2003 on the commission received by them. However, on the listing fees, the adjudicating authority held that they cannot be classified as BAS and would be more appropriately covered under sale of advertising space and time service, which came under the tax net with effect from 01/07/2006. Accordingly, he dropped the demand on the consideration received under the category of listing fees. Aggrieved of the same, the Revenue is before us.
3. In the appeal memorandum filed by the Revenue it is urged that the listing fees charged by the appellant would come under the category of BAS for the period prior to 01/05/2006 and with effect from 01/05/2006, the same shall be covered under sale of advertising space and time service and accordingly, the adjudicating authority should have confirmed the service tax demanded on listing/banner chargers.
4. The Ld. Additional Commissioner (AR) appearing for the Revenue reiterates the grounds urged in the appeal memorandum.
5. The respondent has sought adjournment of the case on the ground that they did not receive the notice. However, from the request for adjournment itself very clear that they are aware that the case is listed for hearing today. It is the fifth time the case is coming up for hearing. Therefore, we are not inclined to adjourn the hearing as requested by the respondent.
6. We have carefully considered the submissions urged by the Revenue in their appeal memorandum and reiterated by the Ld. AR. As per the appeal memorandum, service is classifiable under sale of advertising space and time. However, the appeal memorandum seeks to classify the said services under BAS prior to 01/05/2006. This contention of the Revenue is contradictory. If the service is classifiable under sale of advertising space and time with effect from 01/05/2006 which is a totally different service and which has not been carved out of BAS, the Revenue cannot contend that the same should be classified under BAS prior to 01/05/2006. It is a settled position of law that when the new entry is created so as to bring the activity under the category of taxable service, it is implied that the said activity was not taxable prior to inception of the new entry. Therefore, we do not find any merit in the Revenues appeal. We also observe that in the show-cause notice issued to the noticee, the classification of the activity under BAS has not been raised at all. In view of the above analysis, we do not find any merit in the appeal and accordingly dismiss the same.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 4