Hakamichand D & Sons Vs C.S.T. Service Tax (CESTAT Ahmedabad)
Appellant has supplied bedroll kits to passengers of Air-Conditioned class and other classes on behalf of IRCTC. As per the contract with IRCTC, the Appellant has to compulsorily provide the bedroll kit to passengers on demand. For the said services a monthly bill was raised by the appellant to IRCTC, the appellant for the said services needs not to charge the passengers. The services have been rendered by the appellant to the passengers on behalf of IRCTC. The said services rendered by Appellant for an on behalf of IRCTC to passengers in the nature of a „customer care service‟. Therefore we are of the view that such services appropriately classifiable under business auxiliary services under the category of “Customer care services provided on behalf of the client under Section 65(11) of the Finance Act, 1994”.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
These appeals are filed by both, Appellant and Revenue against impugned Order-In-Original No. STC/05/COMMR/AHD/2010 dated 26.02.2010.
2. The brief fact of the case is that the appellant are engaged in the business of providing catering service and supply of Bedroll kits in various Train of Indian Railway as per the licence/ contracts provided by IRCTC, thereby providing services i.e. “Outdoor Catering Services” and “Business Auxiliary Service”. Intelligence gathered revealed that they are involved in evasion of Service tax by way of providing taxable service but not paying appropriate amount of Service tax. Therefore, appellant was asked to furnish Balance Sheet, ST-3 returns, sales ledger etc. for the period 2003-04 to 2007-08. It was found that assessee had been providing services of supply of bedroll kits to the passengers of train on behalf of IRCTC and not paid the service tax. The services bedrolls kits supplied to the passengers on behalf of IRCTC are squarely covered under the clause no. (ii) of the definition of „Business Auxiliary Service‟ defined under Section 65(19) of the Finance Act 1994. Further investigation carried out and found that they also engaged in the business of providing Railway Catering Services covered under the Outdoor Catering Service as defined under Section 65(76a) of the Finance Act 1994. The Registration for the said service obtained from March 2006 and service provider had not calculated the appropriate value of railway catering service provided by them during the period from 01.03.2006 to 31.03.2008. Detail Show cause notice was issued proposing service tax of Rs. 55,47,317/- under the category of Outdoor Catering Service and Service tax amount of Rs.42,20,893/- under the category of Business Auxiliary Service. The adjudicating authority after considering the submissions made by the appellant dropped the demand related to the catering service and confirmed the demand on supply of bed rolls kits under the category of Business Auxiliary Service along with interest and penalties. Hence assessee and Revenue both are before this Tribunal.
3. Shri Nilesh V Suchak, Learned Chartered Accountant appearing for the appellant submits that Learned Commissioner has erred in confirming the demand on bed roll kits considering the same as taxable service under the category of Business Auxiliary Service. IRCTC is a Govt. of India Enterprises and it had vide letter dated 2.01.2009 categorically written to the Assistant Commissioner, Anti Evasion, in response to its letter dated 02.05.2008 that service tax is not applicable on work providing bed rolls as „customer care service‟ under the category of “Business Auxiliary Service” within the meaning of Section 65(19) of the Act. It was independent wok and has not been included as a taxable service in the Act.
3.1 The term „on behalf of‟ means representing someone to a third party. Hence „on behalf if‟ is used only in situation where there are three parties in the arrangement and one is representing another to third party. This view also supported by CBEC Clarification vide paragraphs 18.2 of the Circular No. 80/10/2004-ST dated 17.09.2004. In their case they are granted license (permission) to merely supply the bedroll. The consideration depends on the number of bedrolls supplied. This agreement for supply cannot be equated with the provision of any service. Also the terms of agreement with IRCTC also does not specify anything that they are required to provide any customer care service. He placed reliance on the decision General Pre cured Treads Pvt. Ltd. Vs. CCE, Trichy – 2009 (15) STR 724(Tri. Chen.)
3.2 He also submits that they are filing periodical returns regularly and provided all the information as when demanded by the department. They have not suppressed any information with intent to evade payment of Service tax and there is not an iota of evidence to this effect in the SCN and in the impugned order. Under the bona fide belief that service tax is not payable on supply of bedrolls and hence not paid the same and also not charged service tax on the bills raised on IRCTC. The IRCTC also guided us that no service tax is payable on supply of bedrolls. Under the circumstance, extended period of limitation cannot be invoked and penalty cannot be imposed. He placed reliance on the following Judgments:
