2023 (9) TMI 66 - AT - Service Tax

Appeal allowed: Providing space to finance companies not Business Auxiliary Service; no service tax liability.

The Tribunal allowed the appeal filed by the Appellant, ruling that providing space to finance companies without engaging in promotional or marketing ... Levy of Service tax - Business Auxiliary Services - promotional or marketing activities for the finance companies by providing space in the premises and helping to provide auto loans to customers - suppression of facts or not - extended period of limitation - HELD THAT:- Appellant was only providing space to the finance companies who provide auto loans to the customers. They did not undertake any promotional or marketing activities for the finance companies. Their business is sale of Maruti Cars, as a dealer. A customer may choose to make full down payment or may choose to go for financing. In case he chooses to go for financing, he may choose any one of the choice of banks available with him, for which he collects information from the Appellant. Finance commission is received by the Appellant from various financing banks, which are chosen by the customer, in respect of the amount of finance provided by the finance companies to the customers - the Appellant has not provided any ‘Commission Agent’ service liable to service tax under the category of BAS - it is observed that the Appellant was not performing any of the activities of the commission agent. The issue has already been settled by the decision of the Larger bench of Tribunal in the case of M/S PAGARIYA AUTO CENTER VERSUS CCE, AURANGABAD [2014 (2) TMI 98 - CESTAT NEW DELHI (LB)] with identical facts, wherein it was held that providing space to finance institutions by Auto companies would not be liable to service tax under the category of BAS. The Appellants were not liable to pay service tax under the category of BAS. Accordingly, the demands in the impugned order are liable to be set aside. Since the demand is not sustainable, the demand of interest and penalty also will not survive. The Department’s appeal praying for imposition of penalty under Section 76 of the Finance Act, 1994 also not sustainable - Appeal allowed. Issues Involved:- Taxability of promotional or marketing activities provided by the appellant for finance companies under the category of Business Auxiliary Service (BAS).- Imposition of penalty under Section 76 of the Finance Act, 1994.Summary:The Appellant, engaged in the sale of vehicles as dealers, received a Show Cause Notice alleging that they rendered promotional activities for finance companies, considered as a taxable service under the category of 'Commission Agent' and liable to service tax under BAS. The demand for service tax, interest, and penalty was confirmed in the original order. The Department appealed against the non-imposition of penalty under Section 76 of the Finance Act, 1994.The Appellant contended that they did not act as commission agents for financial institutions/banks and merely provided space, which should not be considered as rendering BAS. They argued that they did not promote or market the services of financial institutions/banks and cited relevant circulars and legal precedents to support their position.The Tribunal observed that the Appellant only provided space to finance companies without undertaking promotional or marketing activities for them. The Larger bench decision in a similar case supported the view that providing space to finance institutions does not fall under BAS. The Tribunal applied the principles laid down in previous decisions to conclude that the Appellant was not liable to pay service tax under BAS. Consequently, the demands in the impugned order, including interest and penalty, were set aside.In conclusion, the Tribunal allowed the appeal filed by the Appellant and rejected the appeal filed by the Department, emphasizing that the Appellant was not liable for service tax under BAS.