TaxTMI 
TaxTMI 
2023 (10) TMI 813
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....ntral Excise Commissionerate, Kanpur, visited the premises of the Appellant and examined their accounts and records including Balance Sheets. During the scrutiny of records, it was noticed that the Appellant had received commission and Incentives from M/s Tata Motors Ltd. Further from the scrutiny of the Schedule attached to and forming part of the Profit & Loss Account of the Appellant for the period 2007-08 to 2010-11, it was found that the Appellant had received income from Job Work and freight but did not pay Service Tax on the same. Further, show cause notice dated 12.04.2013 was issued to the Appellant, asking them to show cause as to why:- (i) The amount of Rs.18,09,07,551/- should not be treated as the value of taxable service under the category of "Business Auxiliary Service" & "Goods Transport Agency Service" under Section 67 of the Finance Act, 1994; (ii) Service Tax amounting to 1,70,69,897/-, Ed. Cess amounting to Rs. 3,41,117/- & H&S Ed. Cess. Amounting to Rs. 1,70,557/- (Total amounting to Rs. 1,75,10,117/-) (One Crore Seventy Five Lakhs Ten Thousand One Hundred Seventeen only) should not be demanded and recovered from them under the proviso to s....
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....ion 78 of the Finance Act, 1994, for suppressing value of taxable service with intent to evade payment of Service Tax and also for contravention of various provisions of the Act/Rules discussed hereinabove. However, no penalty is being imposed under Section 76 of the Finance Act, 1994 due to the amendment in Section 78 of the Finance Act, 1994, on account of the period under consideration being from 10th May 2008 onwards." Aggrieved by the above order, the Appellant filed the present appeal before this Tribunal. The issue to be decided in the present appeal is as to whether the service tax under the category of "Business Auxiliary Service" has rightly been demanded on received income/incentive from Tata Motors Ltd., Commission received from banks/financiers, levy of service tax on hire purchase commission/other charges, Job-work charges and demand of Service Tax on Freight earned from Tata Motors Ltd. 3. The learned Advocate for the Appellant urges that so far as the sales and other incentives received as a dealer of TATA Motors Limited is concerned, there is no element of service involved in the said transaction. The manufacturer, Tata Motors during the beginning of the f....
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....ed directly from the customers or buyers of the vehicles. Further, these services are not provided on behalf of any third person. 6. So far as the re-possession charges are concerned, when the vehicles are sold by the banks or financial institutions on financing, in case of default by a customer in repayment of loans or installments, the vehicles are repossessed by the concerned financier, who keeps the vehicles in the Appellant's yard for convenience and nothing is charged by the Appellant from the said financier on this account. Repossession charges are directly collected from the customers/vehicle owners for using the space of the Appellant, which are in the nature of parking charges for the period the vehicles is lying in the Appellant's premises and not for any service provided to the banks/financiers. Thus, there is no element of service provided to any banks and/or financial institutions and neither the repossession charges nor the documentation charges are received from any banks and/or financial institutions and as such, the same are not chargeable to Service Tax under BAS. 7. There are two additional grounds relating to levy of service or job work and freigh....
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....amount of freight, Tata Motors normally incurs have been paid to the Appellant. But, in absence of any consignment note being issued by the Appellant, the said work/service is not taxable under the classification of GTA. 10. Learned Counsel further urges that it is evident from the face of the show cause notice that all the transactions on which Service Tax have been demanded, have been duly recorded in the books of accounts ordinarily maintained by the Appellant and there is no element of any concealment or suppression on the part of the Appellant. In this view of the matter, the invocation for extended period is untenable. Further, the second show cause notice is also in the teeth of the ruling of Hon'ble Supreme Court in the case of Nizam Sugar Factory v/s CCE, A.P. 2006 (197) ELT 465 (SC). 11. The leaned Authorised Representative appearing for the Revenue has relied on the impugned order. 12. Heard both sides and perused the appeal records. 13. Having considered the rival contentions, we find that so far the sales and other incentives are concerned, the same are in the nature of trading receipts received by way of trade discounts and as such not tenable. So far ....