TaxTMI 
TaxTMI 
2023 (12) TMI 1069
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....ed the cross objection. 1.2 Since, both the appeals are arising out of same impugned order, therefore, both are taken up together for discussion and disposal. 2. First we take up the Assessee's appeal, the brief facts of the present case are that the appellant is an authorised dealer of motor vehicles of automobile manufacturers such as Maruti and Tata and their relationship are governed by a dealership agreement which is on record of the appeal paper book. The Appellant purchases vehicles from manufacturers and sells them to retail customers. The Appellant also maintains a service station for servicing, repairing etc. of motor vehicles supplied by them during the warranty period and while providing service, the Appellant has also been utilizing certain spares and parts and recovers service tax on labour charges and recovers the amount relating to spares used during the repair from the manufacturer of motor vehicles. 2.2 The Audit of the appellant was conducted by the department for the period 2005-06 to 2009-10, it was noticed that they had received various incentives/commissions on account of insurance, sales of cars, achieving the sales target, etc. from various banks/insuran....
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....GARH * Confederation Of Indian Industry Versus Commissioner of Central Excise & Service Tax, Chandigarh-1 2023 (7) TMI 57 - CESTAT CHANDIGARH * Syniverse Mobile Solutions Pvt Ltd., (Earlier Transcibernet India Pvt Ltd.) vs. Commissioner of Customs, Central Excise & Service Tax, Hyderabad - IV Service Tax Appeal No. 1319 of 2010, order dated 31.05.2023. * Balaji Enterprises Versus Commissioner of Central Excise and Service Tax, Jaipur-l 2020 (33) G.S.T.L. 97 (Tri. - Del.) She further submits that the impugned order itself has failed to specify the specific clause of the provision in which the demand has been confirmed and therefore, the impugned order is liable to be set aside. 4.1 With regard to demand of service tax on spares and parts, the Ld. Counsel for the appellant submits that the price of spares and parts are not includible in the assessable value of services which are rendered by the appellant. Ld. Counsel referred to some of the documents showing that the services and spares are charged separately from the manufacturer for the warranty provided by the manufacturer to the customers. She further submits that the value of services is separately shown in the bill and ....
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....nimum quantity of goods from them whereas such receipt of incentive/trade discount is not towards provision of any service at all which is also evident from the agreement dated 01.10.2009. Therefore, the Ld. Counsel submits that the demand of Service tax on such amount under Business Auxiliary Service is clearly not sustainable. 4.6 She further submits that the Tribunal has consistently held that the demand of service tax is not sustainable on incentive or trade discount received on buying minimum quantity of goods as it does not pertain to any service provided. In support of this submission, she relied upon the following decisions:- * D.D. Motors vs. The Commissioner of Central Excise 2018 (11) TMI 1763- CESTAT NEW DELHI * Rohan Motors Limited vs. Commissioner of Central Excise, Dehradun 2020 (12) TMI 1014 - CESTAT New Delhi * BM Autolink vs. C.C.E. -Kutch (GANDHIDHAM) 2022 (12) TMI 12 - CESTAT AHMEDABAD * My Car Pvt. Ltd. vs. Commissioner of Central Excise, Kanpur reported in 2015 (40) S.T.R. 1018 (Tri. - Del.) * Commissioner of Service Tax, Mumbai - I vs. Sai Service Station Ltd. reported in 2014 (35) S.T.R. 625 (Tri. - Mumbai) * Sharyu Motors vs. Commissioner of Se....
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.... the same impugned order passed by the Ld. Commissioner dropping the penalty under Section 76, 77 and 78 of the Finance Act, 1994 by invoking the provision of Section 80 of the Finance Act, 1994. 7. Ld. DR for the Department submitted that the order for dropping the penalty under Section 76, 77 and 78 is bad in law because the Ld. Commissioner has confirmed the demand of the Respondent for the extended period alongwith interest by invoking the provisions of the proviso of Section 73(1) of the Finance Act but refrained from imposing penalty against the respondent under Section 76, 77 and 78 of the Act as proposed in the show cause notice. 7.1 He further submits that the Respondent has suppressed the material facts from the department regarding the receipt of various commissions/incentives and the same were detected during the course of audit. He further submits that when the demand is confirmed by invoking extended period, then in that case imposition of equal penalty under Section 78 is mandatorily required and therefore, dropping the penalty in the instant case is bad in law. 7.2 He further submits that the respondent plea of being under the bonafide belief that no service tax ....
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.... clause of 'Business Auxiliary Service' is required to be mentioned and if not mentioned, the entire demand is liable to be set-aside. In this regard, we may refer to the decision of the Tribunal in the case of Syniverse Mobile Solutions Pvt. Ltd. vs. Commissioner of Customs, Central Excise & Service Tax, Hyderabad-IV vide Final Order No. A/30152/2023 dated 31.05.2023 wherein the Tribunal in Paras 11 and 12 has observed as under:- 11. Coming to the very first preliminary objection raised by the Appellant that the Show Cause Notice has failed to correctly specify the clause under which the Appellant services will fall, on perusal of the Show Cause Notice it is seen that the entire portion of Section 65(19) pertaining to Business Auxiliary Services has been extracted at Para 2 of the Show Cause Notice without any reference whatsoever as to under which clause of the Section 65(19) the services referred by the Appellant would fall. On this issue it is seen that Tribunals have been consistently holding that it is essential for the Show Cause Notice issuing authority to clearly indicate the sub-clause under which the service tax in question would fall. 12. In the case of CCE, Goa Vs....
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....ench has held as under: 28. Likewise, the decision of the Supreme Court in Collector of Central Excise, Calcutta v. Pradyumna Steel Ltd. [1996 (82) E.L.T. 441 (S.C.)] would also not come to the aid of the Department. This decision holds that mere mention of a wrong provision of law, when power that has been exercised is available under a different provision, is by itself not sufficient to invalidate the exercise of that power. 29. The impugned order, therefore, can be set aside only on this ground as the show cause notice does not mention which service out of the seven services specified in Section 65(19) of the Act was undertaken by the Appellant.[emphasis supplied] 9.1 As regards the demand of Service Tax on spares and parts, we find from the documents placed on record at Page No. 116 to 124 of the Appeal Paper book that services and spares are charged separately from the manufacturer for the warranty period and service tax was paid on the value of services and on the value of spare parts, VAT/Sale Tax was paid as the sale of spare parts is considered to be sale of goods and liable to VAT. Therefore, in our view, the service tax is not leviable on the sale of spare parts. I....
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....unal in Para 6 has held as under:- "Thus, on the question of whether the service tax is leviable on the amount of incentive received by the appellant from M/s Maruti Udyog Ltd. for achieving certain sales targets, we hold that same is not taxable under the category of the business auxiliary service as same being in the form of a trade discount received by the appellant from the supplier of vehicles." 9.5 As regards the demand of service tax under Business Auxiliary Service on the amount received on account of colour difference charges of vehicles is concerned, we find that such charges are in relation to sale of car and is related to the value of car sold and not a consideration for any service, let along BAS. To this effect, the appellant has produced the certificate of the Chartered Accountant alongwith ledger which is on record of the appeal paper book. 9.6 Further, we find that in the appellant's own case, for the previous period, vide its order dated 10.09.2010, the Ld. Commissioner (Appeals), Chandigarh set-aside the demand on this issue on the ground that there is no provisions of service involved in this case. 9.7 As far as the demand of service tax on rent received fo....