Anusha Enterprises Versus CC, CE, Visakhapatnam –II and CCT, Visakhapatnam – GST
Service Tax
2018 (11) TMI 834 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 27-9-2018
ST/27655/2013, ST/30254/2016, ST/31131/2017, ST/30459/2018 – A/31327-31330/2018
Service Tax
Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL)
Ms Gaythri, Advocate for the Appellant.
Shri P.S. Reddy, Assistant Commissioner (AR) for the Respondent
ORDER
All these four appeals are taken up for disposal as the issue involved is the same and appellant is also the same.
2. The details of the appeals are under:
Sl. No.
Appeal No.
Appellant (s)
Respondent(s)
Impugned Order
1.
ST/27655/2013
Anusha Enterprises
CC, CE, Visakhapatnam -II
OIA No. 22/2013 (VII) ST dated 17.05.2013
2.
ST/30254/2016
-do-
-do-
OIA No. VIZ-EXCUS-002-APP-048-15-16, dated 28.10.2015
3.
ST/31131/2017
-do-
-do- CCT, Visakhapatnam – GST
OIA No. VIZ-EXCUS- 002-APP-026
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e notice under Section 73(1A) of the Act was issued vide C. No. V/15/25/2015-ST-Tech. dated 15.09.2015 demanding service tax of Rs. 59,405/- (including cesses) under Section 73(1) of the Finance Act, 1994 along with interest under Section 75; apart from penalty under sections 76 of the Finance Act, 1994 for not paying service tax in contravention of Section 68 of the Act read with Rule 6 of the Service Tax Rules, 1994. The notice was adjudicated in the impugned order dated 11.05.2016, culminating in the instant appeal;
3.1 The appellant contended before the adjudicating authority interalia that they were only engaged in the activity of selling of the products entrusted by Bata India Limited for an agreed commission of 7% of the retail sale price, the total price of which for the previous year was less than Rs. 10 lakhs and therefore entitled to the benefit of SSI threshold exemption available under Notification No. 33/2012-ST dated 20.06.2012; that in order to constitute a servi
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ing simply as agent; the case laws cited by the appellant are distinguishable in as much as the case law pertains to commission agents of both banking and non-banking financial institutions and in this case the issue is the assessee is performing his work under the brand name of “Bata”. As the assessee's appeal on the same subject at the Hon'ble CESTAT, Bangalore has not yet been decided, following the jurisprudence, following the order of the Commissioner (Appeals), the lower authority confirmed the demand of Rs. 59,405/- under Section 73(1) of the Act, along with interest under Section 75 ibid; imposed a penalty of Rs. 100/- per month for every day during which such failure continues or at the rate of one percent per month of the demand, whichever is higher under Section 76 of the Act. The lower authority further imposed a penalty of Rs. 10,000/- under Section 77(1)(a) for failure to obtain registration and thus violating Section 69; and penalty of Rs. 10,000/- under Section 77(2) of
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to deny them the exemption and collect service tax from them. She submits that the proviso that is sought to be interpreted by the Department is stating that taxable services provided by the appellant under a brand name or a trade name, whether registered or not, of another person this is incorrect, as appellant is only getting a commission of 7.5% on the total sales made in the outlet and is not marketing any branded services. It is her submission that undoubtedly “Bata” products in shop are for sale and they market the same, but sell the footwear customers. The commission is received by the appellant being less than Rs. 4 lakhs and less than Rs. 10 lakhs during the periods in question, the tax liability confirmed denying the benefit of exemption notification is not in accordance with the law is settled in various forums. She relies upon the various decisions, Peoples Automobiles Ltd., [2011 (24) STR 635], MRS Jaspreet Kaur & MR Gagandeep Singh Vs. CCE, Delhi [2012-TIOL-142-CESTAT-De
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rom the Bata outlet, as per an agreement Revenue has sought to tax the amount received by the appellant as a commission, while, it is the argument of the appellant that the said commission is less than threshold limit under the Notification No. 06/2005-ST and 33/2012 it is not taxable. It is seen from the records that Revenue wants to deny the benefit of notification to the appellant based upon the proviso to the said notification. The relevant portion of the notification is extracted.
In exercise of the powers conferred by sub-section (1) of Section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Finance Act), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts taxable services of aggregate value not exceeding four lakh rupees in any financial year from the whole of the service tax leviable thereon under section 66 of the said Finance Act:
Provided that nothing contained in this notification sh
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ench of the Tribunal in the case of A.S. Financial. In that case, Revenue while invoking the same provisions wanted to tax the amount received by the respondent in that appeal (A.S. Financial). The relevant findings of the Tribunal in an issue similar/identical to the in the case in hand are reproduced.
“5. There is no dispute that the services provided by the respondent to ICICI Bank are the services of marketing of the services of ICICI Bank and also assisting the customers in obtaining loans from the bank and this service is Business Auxiliary Service taxable under Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994. There is also no dispute that the turnover of the respondent during each financial year, during the period of dispute, is less than Rs. 4 Lakhs. The only point of dispute is as to whether the respondent are eligible for small scale provider exemption under Notification No. 6/2005-S.T. and in this regard, the only point of dispute is as to whether the
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the respondent shall, on the premises from where they are going to conduct their business, display a sign bearing the words “Franchisee of ICICI Bank Ltd.” and shall also mention the words, “Franchisee of ICICI Bank Ltd.” on their visiting cards and the in the newspapers advertisements issued by them for marketing/promoting the services of ICICI Bank Ltd. Clause 6 of the agreement mentions that the Franchisee shall use only such letter head, invoices, signs, display materials, promotional literature, equipment and other items in connection with the promotion of service products of ICICI Bank Ltd. as approved by the ICICI bank in writing. In terms of Clause 10 of the agreement, ICICI Bank shall make available to the respondent the advertisement materials including posters, leaflets, displays, flyers, stickers, signs, cards, which the respondent shall prominently display, maintain and distribute at their own expenses. In our view, there is nothing in the above clauses from which it can b
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eir service under the brand name of ICICI Bank. In fact the Respondent are not the Franchise of ICICI Bank Ltd. in the sense that they are providing financial services by using the business model and brand name of ICICI Bank. It is not the case of the department that the respondent for using the brand name or trade name of ICICI Bank Ltd. were paying some amount to the bank. On the contrary, it is the ICICI Bank which is paying to the respondent for providing the marketing services. The respondent, therefore, cannot be treated using the brand name of ICICI Bank Ltd. We, therefore, do not find any infirmity in the impugned order. The Revenue's appeal is dismissed.”
It can be seen from the above reproduced findings in the case of A.S. Financial, the respondent was specifically providing the marketing services and display banners and equipments and other items were of the expenses of A.S. Financial. The issue involved in this case in hand by squarely covered by the above said ratio and w
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