2019 (1) TMI 511 - AT - Service Tax

Tribunal upholds service tax demand on Tata Car Service Centre; penalties upheld, quantum to be redetermined

Tata Motors Ltd. Versus Commissioner of Cen. Excise & ST (LTU), Mumbai

The Tribunal upheld the demand for service tax on services provided from the Tata Car Service Centre, Worli, Mumbai, and under Business Auxiliary ... Valuation - Authorized Service Station Services - inclusion of reimbursement received by the dealer/ authorized service station from the assessee for carrying out service of any motor car, light motor vehicle or two wheeled motor vehicle manufactured by the appellant in assessable value - identification of the taxable person, whether it is Appellant or the Authorized Dealer who are providing the Taxable Service under the category of “Authorized Service Station Services” to the recipient of the services, i.e. the customers who have purchased the car - Held that:- The matter needs to be relooked for determination of tax liability and all the documents that appellants would like to produce in their support. The order of Commissioner proceeds on no availability of certain documents for his consideration. Further appellants have also claimed that certain expenses such as those relating to commercial vehicles and in relation to the material/ parts supplied during the provisioning of the services needs to be deducted while calculating the value of services in respect of which demands can be made - Further the basic document in respect of the registration and payment of the service tax by the authorized dealers in respect of free warranty services provided needs to be examined and then only a final view and quantification of service tax to be paid can be done - Since it is an admitted fact that certain information as required by the department was not made available to the department by the Appellants, the extended period of Limitation as per proviso to sub section (1) to Section 73 of Finance Act, 1994 shall be available to the department. Business Auxiliary services - reverse charge mechanism - Appellants have challenged the demand stating that these services have been provided by the foreign buyers outside India, they cannot be taxable in India - Held that:- Section 66A clearly and unambiguously provides that, the services provided by the person (person A) having any fixed establishment from which the service is provided or to be provided or has his permanent address or usual place of residence, in a country other than India to any person (person B) who has his place of business, fixed establishment, permanent address or usual place of residence, in India, shall be treated to be provided by the person B to himself and shall be taxable in India - demand upheld. Banking and Financial Services - whether the agreements/ contracts entered into by the appellants are loan contracts/ agreement or they are something else which fall under the category “Banking and Financial Services? - Held that:- In this case the agreement is not of a loan as understood in general terms but incorporates various other factors which are taxable under the category of Banking and Financial Services. Appellants have by way of these agreements extended credit facility to the buyers, for a consideration. The part of considerations which cannot be classified as “interest on loan” would be subjected to service tax, by way of determination of value of value of taxable service by application of Section 67 or Service Tax (Determination of Value of Taxable Services) Rules, 2006 - appellants are required to make a justifiable claim, claiming the benefit of exemption if applicable in their case, and then adjudicating authority needs to examine or reject the said claim after considering all the relevant aspects in a judicial manner. Dealer subvention income - Held that:- The interest does not arise on account of any loan simplicitor. They recover from the vehicle purchaser, finance charges on the principal amount. Where a prospective purchaser is unwilling to pay at the said rate, the dealers in order to increase their sales, agree to bear part of these finance charges. It is clear that the real cost/ value of the services provided by the assessee is worth 9% of the principal amount. Therefore, the entire amount shall in toto form' the gross amount charged' for, the purpose of determining taxable value under Section 67, even if the dealer undertakes to pay part of the financial charges on behalf of the vehicle purchaser. Late payment charges - Held that:- In the instant case, they extend certain credit facilities by way of permitting deferred payment for the vehicles sold and in the process levies several financial charges spread over a period of time. As such, late payment charges which are integrally related to the financial services provided are also part of the consideration received from the service recipient for the taxable services provided classifiable under 'Banking and Other Financial Services'. Considerations received and accounted for as 'credit card receipts' - Held that:- The assessee claims that these pertain to some past period not covered by the show cause notice. Appellants have not substantiated the said claim. Further in terms of the law service tax is payable on the realization basis and not on the accrual basis. Since the matter are being remanded the quantum of penalties too need to be determined after determination of duty demand - Interest is payable as statutory liability in case of short payment of service tax by the due date. Thus Demand for interest under Section 75 of Finance Act, 1994 is also upheld. Appeal disposed off by way of remand. Issues Involved:1. Authorized Service Station Services2. Business Auxiliary Services3. Banking and Financial Services4. Penalties and LimitationDetailed Analysis:1. Authorized Service Station Services:The appellants were registered under the category 'Authorized Service Station Services' from 01.04.2007, though the services were taxable from 16.07.2001. The appellants reimbursed their authorized dealers for providing these services, and the cost was included in the provision for warranty. The Commissioner confirmed the demand for service tax on these reimbursements, including services provided from the Tata Car Service Centre, Worli, Mumbai.The appellants argued that the liability to pay service tax was on the dealers, not them, and that the services provided from their own repair shop were not taxable as 'Authorized Service Station Services.' They also contended that the demand included reimbursements for commercial vehicles and materials, which should not be taxed.The Tribunal found that the Commissioner misdirected himself by focusing on the contractual obligations rather than identifying the taxable person. It was concluded that the appellants had a contractual obligation to ensure free warranty services, but the actual service provider was the dealer. The matter was remanded to verify if the dealers paid service tax on the reimbursements.2. Business Auxiliary Services:The appellants paid commission to foreign agents for services related to the export of goods. The Commissioner confirmed the demand for service tax under Section 66A, which treats services received from outside India as taxable in India.The appellants argued that these services were provided outside India and should not be taxed. However, the Tribunal upheld the demand, citing Section 66A and the Tata Steel Ltd case, which clarified that services received by a recipient in India for use in business or commerce are taxable.3. Banking and Financial Services:The demand was based on income from Hire Purchase and loan contracts. The appellants contended that the income included interest on loans, which is not taxable, and provided details of service tax already paid. The Commissioner found that the agreements were not merely for loans but included other services taxable under Banking and Financial Services.The Tribunal noted that the appellants needed to substantiate their claims regarding non-taxable income and exemption under Notification 4/2006-ST. The matter was remanded to examine the classification of various incomes and the applicability of the exemption.4. Penalties and Limitation:Penalties under Sections 76 and 77 were imposed for contraventions. The Tribunal upheld the penalties, stating they do not require mens rea. However, the quantum of penalties needed to be redetermined after the final determination of the service tax demand.The extended period of limitation was applicable due to the appellants' failure to provide relevant information and pay the service tax. The Tribunal cited the Madras Petrochem case to support the application of the extended period.Conclusion:The Tribunal upheld the demand for service tax on services provided from the Tata Car Service Centre, Worli, Mumbai, and under Business Auxiliary Services. The demands related to reimbursements to Authorized Dealers and Banking & Financial Services were remanded for redetermination. Penalties were upheld, but their quantum needed redetermination. The Commissioner was directed to adjudicate the matter within four months.