TaxTMI 
TaxTMI 
2019 (2) TMI 573
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....er,2003 to March, 2008 and April, 2009 to March, 2010 were issued to deny the credit inadmissible to the appellant and to demand service tax under the category of Business Auxiliary Service. The matters were adjudicated and the demand on account of service tax under the category of Business Auxiliary Service and denial of credit on various input services were confirmed along with interest and penalties were also imposed. Against those orders, the appellant is in appeal before us. 4. Heard the parties and considered the submissions. 5. The credit sought to be denied on the following services as given in chart below:- 6. Further the demand of service tax has been confirmed on the following grounds: (i) Demand of service tax along with interest on the commission received as insurance 'pay out' from insurance companies and banks during the period from October, 2003 to March, 2008 under the category of Business Auxiliary Service. (ii) Demand of service tax along with interest on the commission received as bank 'pay out' from banking companies and banks during the period October, 2003 to March, 2008 Business Auxiliary Service. (iii) Demand of service tax on the amount r....
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....cussing the said issue. Demand of service tax (i) (a) We further take note of the fact that the demand of service tax has been confirmed on account of commission recovered from insurance companies and banks during the period October, 2003 to March, 2008 under the category of Business Auxiliary Service. (b) We find that in the show cause notices, the demand was proposed to be confirmed under the category of Business Auxiliary Service. The adjudicating authority has confirmed the demand as Insurance Auxiliary Service, therefore the demand is not sustainable as the adjudicating authority has gone beyond the scope of show cause notice. Moreover, when there are two categories of services, therefore, the demand cannot be confirmed by invoking the extended period of limitation. It is a fact on record that for the period October, 2003 to March, 2008, the show cause notice was issued to the appellant on 30.3.2008, therefore, the said demand is barred by limitation. (ii) The demand sought to be confirmed on account of commission as insurance pay out from insurance companies and banks during the period October, 2003 to March, 2008 under the category of Business Auxiliary Service. ....
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....servicing/repair of heavy vehicles like trucks by authorized service station is liable to service tax under Section 65 (105) (zo) Service Tax is liable on services provided by an authorized service station to a customer in relation to service, repair, reconditioning or restoration of motor cars, light motor vehicles or two wheeled motor vehicles [Section 65 (105) (zo)]. Thus, servicing of heavy vehicles like trucks, not being one of the specified categories of motor vehicles, is at present not covered within the scope of the said taxable service. 10. Therefore, we hold that the demand on the services rendered by the appellant on account of warranty charges is not sustainable against the appellant. (iv) The demand of service tax sought to be confirmed on the value of amount payable towards the value of spare parts/consumables utilized during the course of provision of services in the capacity of Authorized Service Station. 16. We find that the said issue has been examined by Hon'ble Allahabad High Court in the case of J.P.Transformers-2014 (36) STR 961 (All.), wherein the Hon'ble High Court has observed as under:- "9. In the present case, it has been found as a mat....
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....et, therefore, the appellant is getting incentive on account of discounts for excess sale effected by the appellant. Such amount of discount which cannot be held Business Auxiliary Service in terms of Section 65 (19) of the Finance Act, 1994 as the appellant is not promoting or marketing or selling the goods on behalf of their client. In fact, the appellant is marketing their own goods as the appellant is the owner of the goods in question. The said issue dealt with by this Tribunal in the case of Sai Service Station Ltd.-2014 (35) STR 625 (Tri.-Mum.) wherein such sales incentives granted by the manufacturers to the dealers have been held out of ambit of service tax. Therefore, we hold that the demand of service on this ground is not sustainable against the appellant. 14. We further take note of the fact that the extended period of limitation is not invokable. 15. As we are holding that the credit cannot be denied to the appellant and no service tax can be demanded from the appellant, therefore, no penalty is imposable on the appellant. 16. In view of above discussion, we set aside the impugned orders and allow the appeals filed by the appellant. (Operative of order was....