TaxTMI 
TaxTMI 
2024 (3) TMI 1524
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..... It was noticed by the department that an amount of Rs. 1,62,93,870/- Rs. 1,88,86,877/- and an amount of Rs. 1,30,12,234/- for the financial year 2012-2013, 2013- 2014, 2014- 2015 (up to December 2014) respectively was received by the appellant as dealer's margin from M/s. Depuy Medical Private Limited . 1.1 The department has noticed that appellant has offered to act as 'super distributor' for M/s. Depuy Medical Private Limited for all India locations to supply products to the distributors appointed by the company. As per the agreement signed with M/s. Depuy Medical Private Limited, the appellants have undertaken to provide requisite infrastructure and financial credit worthiness, expertise to act as 'super distributors' as per the terms and conditions mutually agreed between them. 1.2 The department entertained a view that the activities undertaken by the appellant such as providing warehousing and infrastructure facilities, placement of order, inventory control, security and insurance of goods, providing timely collection of payment, realization of dues from the buyers and making timely payments to the principal are clearly covered under the category of service which was ....
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....ven point of time. In order to meet the requirements of their distributors to dealers. Since, the product dealt in are non-requisition under emergency substance for surgery or extent, maintaining an adequate stock to different sizes of implants has been key role of super distributors that is the appellant. In this regard the learned Advocate has drawn over attention to the position of the inventory in their books of accounts. 2.1 With regard to the margin of profit that is post sale discount credited separately by M/s. Depuy Medical Private Limited ( Johnson and Johnson Limited). It has been contended that (Ortho implants) are medical products which are life saving and sensitive. As a major to control its price at which the implants are made available to hospitals the principle namely M/s. Depuy Medical Private Limited decided not to allow 'super distributor' and its distributors to change the price and a fixed margin of profit was given by M/s. Depuy Medical Private Limited to them. As per the policy of the principal company the appellant does not sale the implants directly to any hospitals /nursing homes, rather the same are supplied through the agent of distributors appointed....
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....s. Comm. Of Service Tax, Mumbai 2014-TIOL-1703-CESTAT-MUM * Chotey Lal Radhey Shyam Vs. Comm. of C. Ex. and Service Tax, Lucknow 2017 (47) S.T.R. 309 (TRI. - MUMBAI) * B M Autolink Vs. Commissioner of Cantal Excise, Kutch 2022-TIOL-1171-CESTAT-AHM * Om Air Travels Pvt Ltd Vs. Commissioner Of Service Tax, Ahmedabad 2019 (25) G.S.T.L. 460 (Tri. - Ahmd.) * LMP Precision Engineering Company Pvt Ltd Vs. C.C.E. & S.T., Daman 2017 (3) G.S.T.L. 235 (Tri. - Ahmd.) * Charanjeet Singh Khanuja Vs. C.S.T., Indore/Lucknow/Jaipur/Lidhiana 2016 (41) S.T.R. 213 (Tri. - Del.) * Bansal Trading Co Vs. Commissioner 2015-TIOL-2180-CESTAT-DEL of Central Excise, Panchkula * Rama Marketing Vs. Commissioner of Central Excise, Kolhapur 2015-TIOL-777-CESTAT-MUM 3. We have also heard the departmental representative who has reiterated the findings as given in the impugned order-in-original. 4. We have heard both the sides. The only question which needs to be answered by us is whether the activity undertaken by the appellant on behalf of the M/s. Depuy Medical Private Limited falls under the service category of "business support service" as def....
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....exclusive Super Distributor for sale of its Products only to Company Distributors in India and Super Distributor hereby accepts such appointment and agrees to so act as Super Distributor. 3.1 Warehouse & Infrastructure: a. Safely and appropriately Store the Products, at the warehouses located at A-1/45, 100 SHED AREA, DEGAM ROAD GAND.C. VAPL GUJARAT-396195 (hereinafter referred to as the "Warehouses") for sale and loaning of instruments to the Company Distributors. The Super Distributor shall bear the cost of operating the Warehouses. b. Provide storage conditions as per the storage requirements of tice Products or as per the Product label/insert or as intimated by the Company for time to time. c. Maintain the required infrastructure to provide effective services, including but not limited to providing and maintaining inventory, facilities, organization, storage space, sales and/or delivery personnel, van, telephone, computer, fax, training of its employees and financial resources as needed to ensure proper ordering, receipt, storage, stocking and delivery of the Products. d. Follow the storage norms or quality guidelines as pro....
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....ions and mishandling of the Products by the Super Distributor, in the event. there is any such loss or damage, the Super Distributor shall immediately replenish stocks by placing order on the Company. The Super Distributor shall ensure there is no disruption in supply of Products to the market or default in fulfilling Company Distributor orders for any reason. Specifically, pending insurance claim or non-receipt of insurance claim shall not be a reason for not replenishing stocks immediately. 3.8 Sales/loaning Data a. Maintain necessary books and records of the Products purchased from the Company and subsequently supplied to Company Distributors showing the batch numbers, lot numbers of the Products and provide such information to the Company as and when requested by the Company and in such manner as requested by the Company. b. Maintain and submit market and billing reports and Company Distributors data or any other information as specified by the Company. Provide to the Company, details relating to the distribution, sales and marketing data or any other data as and when required, and in the manner as requested by the Company. This may include sending da....
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.... the property in the Products shall be transferred to the Super Distributor on receipt of the Products at Super Distributor location. The Company shall be responsible for all claims and damaged during transit 6.5 The Company shall raise an invoice on dispatch of Products to the Super Distributor and shall charge the Super Distributor applicable taxes/duties, in the Invoice. 6.7 The Company may along with the Products supplied, furnish the suggested price list at which the Super Distributor may sell the Products. The Super Distributor is entitled to sell the Products at a price lower than the suggested price. 7. CONSIDERATION 7.1 Super Distributor agrees that the Company has arrived at and offered a fair and adequate return on the investment made by Super Distributor. Super Distributor has also understood and agreed that the demand/supply trend of the Products may have direct impact on his profitability but in any adverse situation, the Super Distributor shall not hold the Company responsible for payment of any damages or compensation, in any manner whatsoever. 12. RELATIONSHIP 12.1 This Agreement is entered into on a principal-t....
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....nterest at the rate of 18% for annum will be charged if payment is not made within 7 days from the date of invoice." 4.4 From the perusal of the invoices as well as VAT returns which have been filed by the appellant, we hold that the ownership of property stand transferred to the appellant as soon as invoice has been issued against the consideration of the value of the product, in such a situation we are of the opinion that the activity undertaken by the appellant is Purely of the sale of the product of the company and no element of the service is present in this case. Further, it will be relevant to reproduce definition of "service" is provided under Section 65B (44) of the Finance Act, 1994 :- "(44) "service" means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include- a. ----------- (i) ------- (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution;" 4.5 As per the clause-ii of sub Section 44(a) of Section 65B above, it is clear that "transfer, delivery or supply of any goods....
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.... authority to make available the scrutiny report submitted by the Superintendent. Head Quarters Preventive Unit, Madurai to the petitioner. Thereafter, personal hearing was conducted and the impugned order dated 17 12 2020 came to be passed confirming the demand of Service Tax together with interest and penalty Questioning the same, this writ petition came to be filed. 4. The respondent has filed a detailed counter affidavit, and the learned Standing counsel took me through it's contents. 14. The learned Senior counsel would further contend that an agreement will have to be read as a whole and that the individual clauses occurring in the agreement cannot be torn out of context. In this regard, he placed reliance on the decision of the Supreme Court reported in 2008 (10) S.T.R. 545 (SUPER POLY FABRICKS LTD., V. COMMISSIONER OF C. EX., PUNJAB)= 2008- TIOL -82-SC-ST. In the aforesaid decision, the Supreme Court held that there may not be any doubt whatsoever that a document has to be read as a whole. The purport and object with which the parties thereto entered into a contract ought to be ascertained only from the terms and conditions thereof. Neither the nomenclatur....
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.... East India Commercial Co. Ltd., Calcutta Vs. Collector of Customs, Calcutta [1983 (13) E.L.T 1342 (S.C)] the proceedings are without jurisdiction, the question of applying the rule with regard to exhaustion of alternative remedy will not arise. The order impugned in this wit petition is quashed. 19. This writ petition is allowed. No costs consequently, connected miscellaneous petition is closed." and this Tribunal's decision in case of M/s. B.M. Autolink versus Commissioner of Central Excise and ST in Appeal No. 11812/2016 dated 28.11.2022 reported under 2022 -TIOL-1171-CESTAT-AHM. "4. We have carefully considered the submissions made by both the sides and perused the records. We find that the fact is not under dispute that the appellant being a dealer purchase the vehicles from M/s. Maruti Suzuki India Ltd. and subsequently sell the same to various customers. The transaction between M/s. Maruti Suzuki India Ltd. and the dealer and subsequently sale transaction between the dealer and the customs are purely on principal-to-principal basis. The vehicle manufacturer M/s. Maruti Suzuki India Ltd. on the basis of yearly performance of sale grants the discount to th....
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....me". During the course of audit of the books of account of the appellant, the Department noticed such Misc. income and took the view that such amounts received by the appellant from MUL are consideration towards promotion and marketing of the vehicles manufactured by MUL and such consideration is liable for payment of Service Tax under the category of Business Auxiliary Service. By taking the above view, show cause notice dated 17-10-2011 was issued covering the period 1.4.2006 to 31.3.2011. Further, show cause notice dated 9-10-2012 was issued covering the period 1-4-2007 to 31-3-2012. The proceedings initiated under the above show cause notices resulted in the issue of two impugned orders, which are under challenge in the present appeals. Since the issue involved is common, these appeals are disposing of with this common order. The demands have been raised by Revenue through the two impugned orders covering overlapping periods. Demand has been made under the category of Business Auxiliary Service for the amounts received by the appellant from M/s. MUL. Such amounts have been received towards incentives/discounts in connection with the sale of the vehicles manufactured by MUL. In ....
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....e the demand under GTA service." 10. The same view was taken by the Tribunal in CST v. Sal Service Station Ltd. 2013 (10) TMI 1155-CESTAT Mumbai = 2014 (35) S.T.R. 625 (Tribunal) = 2013-TIOL-1436-CESTAT-MUM 11. In regard to the period post July, 2012, reliance has been placed by the Learned Counsel for the appellant on an order dated March 23, 2017 passed by the Joint Commissioner, Central Excise in the matter of M/s. Rohan Motors Ltd. (own matter). The period involved was from October, 2013 to March, 2014 and 2014-15. The Joint Commissioner, after placing reliance upon the decision of the Tribunal in Sai Service Station Ltd. (supra), observed as follows: "I also find that the ratio of the aforesaid case of CCE, Mumbai-I v. Sai Service Station is squarely applicable to the facts of the present case and hold that no service tax can be demanded on the "incentive' which was in form of trade discounts, extended to the party in terms of a declared policy for achieving sales target. Accordingly, I find that the demand of service tax raised on this count is unsustainable. Thus demand of interest under section 75 of the Act is also no sustainable." 1....
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....0MM PAYMENT utpatch To DESCRIPTION No credit of the 4% Aditional Duty of Customs levied unde PAN NO. : Depuy Medical Pvt. Ltd .- AACCD4595J HIN DAY'S C.D. ANT. ISTOMERESRETAIL INVOICE Name PUSHLOGISTICS AND WAREHOUSING Regn. Not CET NO : 24750901868 - DL 208 208 - G.AVAL-93021 Address PVT LTDANDW YAPI Gujarat 396195 CUSTOMER COPY Fal ROANTITY NO.OF CASES N. R .: 10,500. 10.500.€ 10.800 pb De 0 D1207204 10-+1 CERTIFIED THAT DUID &.T. REON, IS VA ED THAT OUR S. IS VALID ON THE DATE OF AFORES FORESAID SAL Interest @ 18% pa wil be charged payment : 11929500403 801580632 IN30/01/ZD S-RE-1710-TC3-PARA Carrier L.R. No. & Date 5280016577 Cust Code 13.12.2012 1020809 OR INVOICE NO" ST% S. T.AMT SF AGENT epuy Medical Pvt. Ltd. 10500: Order Red. 2) By : Air / Ro WE HEREBY GIVE THE WARRANTY THAT THE GOODS DESCRIBED AS SOLD BY US IN THE INVOICE DO NOT CONTRAVENE IN ANY WAY THE | N JUSTMENTS OR CLAIMS ON THIS INVOICE TO THE COMPIEREDICE OF THE INVOICE, PLEASE ADORESS ALL CORRESPONDENCE TION OF ANY INDIVIDUAL "FORTY SEVEN THOUSAND SEVEN HUNDRED FIFTY RUPEES" GD. OFFICE : JOHNSON HOUSE, 64 4....
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....INVOICE NO PLEASE PAY TED THAT OUR S.T. REGN. 6 VAL Carrier For ply Medical Pvt. Ltd. S. T. ANT ON THE DATE OF AFOREBAJO SALE R. No. & Date DATE We hereby give the warranty that the goods described ny way the provisions of the drug Ananas selby us in the invoice do not invoice. please ggery the provisions of the drug Act 1940. notto the correspondence related to adi kindly re giving reference of the As ofany ing Internal en . nterest @ 18% p.a. will be charged if the payment is pr m From: PUSH Name . SHALANI ensign CHALANI MAHARA MEDISURGE JA ABATMENT TROCAAPATMENT TEMPLE, NR.KAUR NURSING . 8004112 5/2/2015 LOGISTICS & WAREHO G-1 8 TICS & WAREHOUSING PVT LTD! MEDISURGE PHALANI MEDISURGE MAHARAJA APATME JAIN TEMPLE NID ERNE KAUR ss-03. Invoice Date G-2 OF PLOT NO 100 SHED AREA -03, Order Ref No DERIN 5 TAL : OPP SHARED TEMPLEINR NURSING LID OPP JAIN 004112 PARDI (VALSADAD VA SAD) -3961 SHANKAR NAGAR RAIPUR Pickslip No. Cust Ord No. 018 286195 492001 T.No : 24250901585 LST.No : 22811704360 RT.No : 22811704360 Carffer er BLUE DART -No : 24750901585 ST.No : 220 122011701300 ESTENO : NO. I.No2 :....
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....OICE TO THE COMPANYAND NOT TO THE ATTENTION OF ANY INDIVIDUALCODY VE TOADJUSTMENTS 1 050756125 31.04.2020 lesioneJohnson REBY GIVE THE WARRANTY THAT THE GOODS DESCRIBED AREFERENCE OF THE INVOICE. PLEASE IN PAN No .: AAACJO866E 50746125 31.08.201 6 Chemical Enterprises Pvt. Ltd. EXP. DT. 78,500.00 12943 129435120 91,200.00 09 129454109 32000 00 en MBT REVISION CEM TIB TRAY SZ 2 MAT TRAV NT WITHIN ASH DISCOUNT FOR PAYMENT W FC SIGNA TOS RE INS SIZE2 10 Y SLEEVE POR MIL 37M DESCRIPTION BY US IN THE INNDE DE BASE ADDRESS ALL CORRESPONDENCE Address Despatch de USTOMER THIN DAYS 21.1.1 ROAD GIOC. AREADEGAM 21.1 12 LTD OGISTICS AND WAREHOUSNG C.D. AMT. UNIT RETAIL INVOICE 1/1 5280060799 QUANTIT 26/05/1965 - CST EF: 2503 24250901505 - LST FRE 208 - GJ-VAL-9362 1. 000 NO.OF CASES RATE -7/10/2014 6.500.0 ,000.00 GROSS 148.4.4.0 16.520 00 430209 7 00 620579 LOT NO. 803711771 IN30/01/ZD S-REP-1744-MBT-HIN 127120005 Cust Code Cust Co INVOICE NO. DATE ED THAT OUR S.T. REGN. IS VALID ON THE DATE OF AFORESAID SALE OR P/c Camer ST% Interest (....