TaxTMI 
TaxTMI 
2019 (12) TMI 1685
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....ition. The Applicant relied upon various judicial precedents during the course of the appeal proceedings. It was particularly mentioned to this Hon'ble Tribunal that the issue is squarely covered by the judgement given by a coordinate bench of the Hon'ble Chennai Tribunal in the case of IndusInd Bank Ltd. vs. Commissioner of Service Tax, Chennai [2019 (25) G.S.T.L.220 (Tri.- Chennai)]. 5. The assessee in the aforesaid decision (M/s. IndusInd Bank Ltd.) was engaged in the business of providing loans for purchase of vehicles, which is similar to the Appl;icant5's present case. During audit of accounts it was alleged that the assessee received certain amount towards commission from automobile dealers through discounts, and had not discharged services tax on the commission earned. Revenue was of the view that the amount so received by the assessee should be subjected to service tax. 6. While allowing the appeal, the Hon'ble Chennai Tribunal held that discount received by Bank from automobile dealers cannot be treated as a consideration for service. It was observed that merely because a vehicle is intended to be purchased from a dealer, the Bank would not disburse the ....
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....¢ Gammon India Ltd [2011 (269) ELT 289 (SC)] • Fujifilm India Pvt Ltd [2017 (349) ELT 203 (SC)] • Rajasthan Public Service Commission & Anr [(2003) 5 SCC 480] • Mercedes Benz India Pvt Ltd [2010 (252) ELT 168 (Bom)] D. Decisions relied upon in the Appeal Order are distinguishable on facts. E. Appeal Order is based on an incorrect assertion of the Respondent F. Hon'ble Technical member has taken a contrary position on facts in Tata Motors. 4.1 We have heard Shri Abhishek Rastogi, Advocate for the Applicant and Shri Kishori Lal, Principal Commissioner, Authorized Representative for the revenue. 4.2 Arguing for the applicants learned advocate submitted that- • they had in their written submissions and during the course of arguments relied upon the decision of the Chennai Bench of CESTAT in case of IndusInd Bank Ltd, which is on the same subject. Though this decision has been recorded by the bench while recording his submissions there is no separate finding recorded in respect of this decision in the impugned order tribunal. • As have been held by the Apex Court in case of Honda Siel Po....
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....Court in case of Saurashtra Kutch Stock Exchange Ltd [2008 (320) ELT 320 (SC)] and RDC Concrete (India) P Ltd [2011 (270) ELT 625 (SC)]. Similar view has been expressed by the tribunal in case of Arun Udyog [2009 (236) ELT 194 (T-Ahmd)] and Entremonde Polycoaters Pvt Ltd Nashik [1984 (18) ELT 310 (T)]. • Accordingly the application for rectification needs to be dismissed. 5.1 We have considered the impugned order passed by us along with the submissions made by the Applicant in his application and during the course of arguments. 5.2 In "Kranti Associates (P) Ltd. v. Masood Ahmed Khan" reported in (2010) 9 SCC 496 = 2011 (273) E.L.T. 345 (S.C.)", wherein, on the requirement of disclosing reasons by a quasijudicial authority in support of its decision, the Hon'ble Supreme Court has summarized the principles as follows : 51. Summarizing the above discussion, this Court holds : (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reas....
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....aid requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA CIV 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". 5.3 In case of Saheli Leasing & Industries Ltd [2011 (253) ELT 0705 (SC)], Hon'ble Supreme Court has laid down as follows: 6.We, therefore, before proceeding to decide the matter on merits, once again would like to reiterate few guidelines for the Courts, while writing orders and judgments to follow the same. 7. These guidelines are only illustrative in nature, not exhaustive and can further be elaborated looking to the need and requirement of a given case :- (a) It should always be kept in mind that nothing should be written in the j....
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.... Irrelevant facts and arguments need not be included in the order, and those which are not relevant for arriving at the decision should be avoided. Also decision need not be loaded with unnecessary information and legal knowledge of the author of the judgment. 5.5 The entire application made for the recall of the impugned order is based on the submission that the tribunal has while passing the impugned order not recorded any finding in respect of the decision rendered by co-equal bench of CESTAT Chennai in case of IndusInd Bank Ltd. Even if for the moment the argument as made in the application for rectification of the order we are of the view that the final conclusions arrived by us in the impugned order will not change. The decision of IndusInd Bank have been distinguished by the learned Authorized Representative during the course of argument as has been recorded by us in para 4.3 of the impugned order. Once the decision has been distinguished, we have recorded the same and proceeded to decide the matter giving our reasons following the applicable decisions in our limited understanding of law, to arrive at the conclusions. Such conclusions could be challenged in the appeal bef....
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....of Dawoodi Bohra [2005 (2) SCC 673] and Madras High Court in case of Philip Jeya Singh [1992 (2) MLJ 309]. 5.8 In case of Saurashtra Kutch Stock Exchange, Honble Apex Court has clearly stated the law on the subject of rectification as follows: "37. In our judgment, therefore, a patent, manifest and selfevident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be cove....
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....the vehicle manufacturers/ dealers is nothing but the loss of interest, they would have suffered on account of providing the loans at the reduced rate of interest. They have even submitted the calculations showing that that the amounts received by them are nothing but equivalent to yearly loss of interest against the loan extended, projected on the date of sanction/ disbursement of loan. They have referred to the clarifications issued by the Reserve Bank of India that subvention amount should be taken into account for determination of the interest rate. Hence they argue that since the subvention income is nothing but interest against the advances the same should not be subjected to service tax. We are not in agreement with the submissions made by the appellants. Once we hold that the amounts received by the appellants as "subvention charges" are consideration for providing the business auxiliary services, the manner in which they are determined are irrelevant. They may be equivalent to difference of their interest earning on loan extended in normal course and under the special scheme or can be more or less than that is immaterial for treating it is as consideration for providing th....
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....y an element of service in prepayment of loan or resetting of interest. As already discussed earlier, the definition covers any activity in relation to lending. 18.1 Reset charges/prepayment charges charged to the customers by the appellant is in the nature of additional interest only and therefore not liable to Service Tax. 18.2 The appellant has contended that the said charges are calculated taking into consideration the rate of interest and loan amount. Thus, they are in the nature of additional interest and not liable to Service tax. 18.3 It has already been discussed that the prepayment charges are the charges for allowing the facility of prepayment of loan. Similarly, reset charges are the charges levied by the appellant for restructuring the interest rate. The method of calculating the charges has no bearing on the nature of service provided. Just because the charges have been calculated based on the outstanding loan amount and the interest rate prevalent at that time will not change the head of income from service charges to interest. 18.4 Interest is nothing but the time-compensation for somebody's money being retained by somebody else. ....
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....lows: "139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that `Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. "......... In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297- 98, para 578) per incuriam has been elucidated as under: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 19....
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.... of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J. speaking for the court observed as under: "With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point." 145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. 146. A Constitution Bench of this Court in Cent....