TaxTMI 
TaxTMI 
2018 (7) TMI 1220
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....ators, Washing Machines etc. in the show rooms. Pursuant to investigations carried out by the Directorate General of Central Excise Intelligence (DGCEI), it appeared that respondents had tie up with various financial institutions like GE Countrywide, TVS Finance etc. for purchase of consumer durables from the show rooms; that in respect of customers who avail the loan facility from such financial institutions, the respondents receive incentives depending on the quantum of business provided through them. It appeared that department took the view that by providing the services, the respondents were operating an agent of "financial institutions' to promote the business of the latter for which activity they receive commission. Hence the said se....
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....ad not been brought to the notice of the department. iv) From the statement of Shri S. Jeyaraj, Accounts Manager of respondents, it had been clearly brought out that as representatives of financial institutions with whom respondent had tie up were available in the show rooms. If the customers wish to avail loan, the respondent directs them to approach such representatives. Shri S. Jeyaraj has admitted the fact that for promoting the business of these financial institutions the respondent had received volume based incentives. The statement of Shri Jeyaraj has not been retracted nor disputed by the respondent. 3. On the other hand, on behalf of the respondent, Ld. Counsel Shri K.A.Parthasarathy made oral and written submissions which can b....
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....on 26.03.2009 for the period 1.10.2003 to 30.09.2008 and as such the same is clearly barred by limitation. v) As alternative plea, Ld. Advocate submits that even in case the tax liability is confirmed against the respondents there cannot be any penalty that can be imposed. The decisions of the Tribunal following Larger Bench decision in Pagariya Auto Center Vs CCE Aurangabad - 2014 (33) STR 506 (Tri.-LB), for example Ved Automotives Vs CCE Kanpur - 2016 (44) STR 140 (Tri.-All) ; Addis Marketing Vs CCE Mumbai - 2017 (50) STR 56 (Tri.-Mumbai) etc. have all set aside the imposition of penalties. 4. Heard both sides and have gone through the facts. 5. It is seen that show cause notice was issued on 26.3.2009; the adjudication order of origin....
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....y the Larger Bench of the Tribunal in Pagariya Auto Center Vs CCE Aurangabad (supra). The relevant portions of the Tribunal's Larger Bench decision are as under : "20. On a consideration of the apparent conflict of opinion in the decisions mentioned in the order of reference and the other decisions which were cited at bar, it is clear that no uniform principle emerges as would guide determination of whether a particular transaction involving an interface between an automobile, dealer and bank or financial institution would per se amount to BAS. The identification of the transaction and its appropriate classification as the taxable BAS or otherwise must clearly depend upon a careful analysis of the relevant transactional documents. Only su....
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....ice', the Larger Bench has held that "transactional documents and other evidence on record' should indicate that the substantial activity is falling within the contours of BAS. In the case before us, these tests have not been applied. Interests of justice require that the matter should be remanded for de novo consideration by the original authority to apply the tests laid down by the Larger Bench of the Tribunal in Pagariya Auto Center Vs CCE Aurangabad (supra) as discussed above. So ordered. 8. At the same time, we find merit in the alternative contention of the Ld. Advocate that in a number of Tribunal decisions, which have applied the ratio laid down by Larger Bench in Pagariya Auto Center (supra), have consistently set aside penalties ....
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....s imposed under Sections 76, 77 and 78, we find that as per our above discussion on limitation, there is bona fide belief of the appellant for non payment of service tax, the appellant has been able to reasonable cause for invocation of Section 80. We are therefore of the view that considering the facts and circumstances as well as discussion made herein above with regard to the demand being time bar penalties under Sections 76, 77 and 78 require to be set aside invoking Section 80. As result we pass following order : (a) Demand from July, 2003 to March, 2005 in respect of Business Auxiliary Services (service relate to HDFC bank) is set aside being time bar. (b) Service tax demand for April and May-2005 require to be re-quantified as ....