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2016 (2) TMI 546
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....i Utility Vehicle, manufactured by M/s Force Motors Ltd. by way of getting them driven by skilled drivers. The primary adjudicating authority held that upto 30.4,2006 the services rendered were classifiable under Business Auxiliary Service (BAS) [Section 65((105)(19}] of the Finance Act, 1994 and with effect from 1.5.2006 the services were classifiable under Support Service for Business or Commerce (BSS) [Section 65 (104c)]. The primary adjudicating authority also held that the appellant was guilty of suppression of facts and therefore, invoked the extended period and confirmed the aforesaid demands along with interest and penalties. 2. The appellant has contended that (i) service provider does not fall under BAS or BSS. It was only providing services of skilled drivers who drove the vehicles to various destinations (depot or dealer's premises) as directed by the service recipient (M/s Force Motor Ltd.) These services can at best be possibly covered under GTA service or manpower recruitment or supply service, (ii) It was not managing any distribution or logistics, (iii) The extended period is not invokable there was no willful misstatement or suppression on its part and Reve....
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.... will be as follows: MODEL RATE PER KM DISTANCE (KM) FROM TO LIGHT COMMERCIAL VEHICLES AND MULTI UTILITY VEHICLES ALL MODEL Rs.4.16 2182 PITHAMPUR GUWAHATI 2. In addition to the above transportation rates, you are allowed to claim the actual toll taxes, road taxes, bridge taxes against submission of original receipts pertaining to the same along with the monthly transportation bill. 3. You will appoint an authorised representative to take delivery of the vehicles from our Factory gate at Pithampur. Your representative will check and ensure that the vehicle is in OK condition at the time of taking delivery. 4. You will take Light Commercial Vehicles and Multi Utility vehicles from our Factory at Pithampur and transportation by road will be arranged by you without any additional cost. Also you will take delivery of tool kits, spare wheel rim tyres & tube etc. alongwith the vehicles and arrange to deliver the same along with each vehicle to the depot. 5. You will ensure that after taking delivery, the Light Commercial vehicles and Muiti Utility vehicles with accessories tool kits etc. will be despatched to our depot imm....
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....les harmless and indemnified against all costs, consequences and damages that may arise on account of any unauthorised use. 17. It will be responsibility of you and your driver to inform us immediately of any accident or mishap or damage to the Light Commercial vehicles and Multi Utility vehicles during the course of transportation. 18. In case of any incidence of seizure of Light Commercial vehicles and Multi Utility vehicles on account of accident or otherwise by the Competent Authorities while in transit, you will ensure that the necessary steps are initiated to get the Light Commercial vehicles and Multi Utility vehicles released, free from all encumbrances, which may prevent us from selling the same. In case of accident: a) You will obtain "Police Panchnama" and arrange for a survey and other formalities for insurance claim and submit all papers to us. b) You will make arrangement for transportation of damaged Light Commercial vehicles and Multi Utility vehicles to our nearest Dealer/ Depot, name of which will be communicated to you after getting first information from you. 19. Along with each Light Commercial vehicles and ....
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....said agreement was not merely executory but required proper management supervision and coordination of various aspects relating to fulfillment of its responsibilities as per the said agreement. Therefore the services rendered clearly fell under the scope of managing distribution and logistics. 5. The primary adjudicating authority held that these services were liable to be classifiable under BAS during the period 1.7.2003 to 30.4.06. During this period, BAS was defined under Section 65 (105)(19) as under: "business auxiliary service" means any service in relation to, - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or [Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, " service in relation to promotion or marketing of service provided by the client" includes any service provided in relation to promotion by the client, in whatever form or by whatever name called, whether or not conducted online, including lottery, lotto, bingo. (iii) any customer care service provided....
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....e in any manner], formulation of customer service and pricing policies, infrastructural support services and other transaction processing. Explanation. - For the purposes of this clause, the expression "infrastructural support services" includes providing office along with office utilities, lounge, reception with competent personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security; As analysed earlier in para 4 the services rendered by the appellant were clearly, unambiguously and fully covered within the scope of managing distribution and logistics and therefore the impugned services were classifiable under BSS and liable to service tax with effect from 1.4.06. 7. When the statute is clear and leaves no scope for ambiguity the contention of the appellant that it had bona fidely belief that the impugned services were not covered under BSS can not be sustained. The appellant has argued that service recipient vide letter dated 8.12.07 stated that no service tax was payable as vehicles were removed on their own power and depots were treated as place of removal. We have perused the said letter dated 8.12.2007. From the said l....
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....n done by the lower authorities is the ratio of Gujarat High Court decision in the case of Ratnamani Metals & Tubes Ltd. vs. C.C.E. - 2013-TIOL-1124-HC-Ahm-CX. 9. The appellant has contended that extended period can not be invoked in respect of impugned order in appeal dated 25.2.2013 as the said order was in respect of show cause notice demanding service tax on same activity for subsequent period and cited the Supreme Court judgment in the case of Nizam Sugar Factory to support this proposition. While on the face of it there seems to be some traction in this contention, on closer examination we find that Revenue sought information with regard to services rendered for the period January 2008 to September 2008 vide letter dated 26.11.2008. It was followed by reminders dated 14.1.09, 26.2.09, 2.3.09, 12.3.09 and 26.3.09. The appellant sent reply dated 9.4.09 vide which it merely forwarded ST -3 return for the period April, 2008 to September 2008 which too was incomplete. Revenue again reminded for supply of information vide letter dated 16.4.09 followed by reminder dated 6.5.09, in response to which vide letter dated 18.5.09 it provided figures of gross amount received only for th....