TaxTMI 
TaxTMI 
TaxTMI 
2024 (9) TMI 1910
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....rein preferred the above two separate appeals against the common Order-in-Original No AHM-EXCUS-001-032-033-20-21 dated 15.03.2021 passed by the Respondent. The Respondent Adjudicated the following 2 Show Cause Notices by common order: Sr. No. Show Cause Notice No. and Date Period involved 1. No. VI/1(d)/CTA/02/Shivalik/17-18 dtd. 23.11.2017 2013-14 to 2015-16 2. ST/04-106/Shivalik IB/O&A/2018-19 dated 01.04.2019 April 2016 to June 2017 1.3 The Adjudicating Authority in the above impugned order held that: i. The Appellant being authorized dealer, received incentive from M/s Hyundai Motors India Ltd. was for providing promotion activities and therefore liable to service tax; ii. The Respondent discarded the submissions made by the Appellant that the activity undertaken by the Appellant was principal to principal basis on the premise that the Appellant did not enjoy the liberty to design his own showroom for conducting the business and the Appellant was not free to advertise and engage publicity of the products by his own; iii. The Respondent discarded the submission of the Appellant that incentive received towards purchase and....
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....ted by the assessee and remitted to the government. When no tax is collected separately, the gross amount has to be adopted to quantify the liability treating it as value of taxable service plus service tax payable. 2.2 The Respondent ought to have considered that extended period of limitation ought not to have been invoked in the present case as the Show Cause Notice was issued on 23.11.2017 for the period from April 2013 to March, 2015 and therefore, demand for the disputed period is barred by limitation and the extended period of limitation ought not to have been invoked. The larger period of limitation can be invoked only on those grounds which are specifically provided under the Statute viz. is suppression, omission or failure to disclose information with intent to evade the payment of service tax. If the department seeks to invoke the extended period of limitation on the ground other than those mentioned in the statue, then such invocation of extended period of limitation is bad in law. It is further submitted that the Service tax was correctly paid by the Appellant as per the provisions of the law and therefore the larger period of limitation cannot be extended in the pre....
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....(52) S.T.R. 299 (Tri.-Bom) ● M/s. Dunac Automobiles Pvt. Ltd. Versus Commissioner of CGST & Central Excise, Jodhpur - 2024 (8) TMI 206 ● Robot Detective & Security Agency Vs. C.C.EX. reported in 2009 (14) STR 689 (Tri.) ● C. C. Ex. &Cus. Patna Vs. Advantage Media Consultant reported in 2008 (10) STR 449 (Tri.) ● Commr. Of C.Ex. &Cus., Daman (Vapi) Vs. Mafatlal Industries Ltd. [2009 (245) ELT 265 (Tri. Ahmed.)] ● Pahwa Chemicals Private Limited vs. CCE, Delhi [2005 (189) E.L.T. 257 (S.C.)], ● Commissioner v/s. Meghmani Dyes & Intermediate Ltd. [2013 (288) ELT 514 (Guj.)], ● Simplex Infrastructures Ltd. Vs. Commissioner of Service Tax, Kolkata 2016-TIOL-779-HC- KOL-ST ● Delhi International Airport Ltd. Vs. Commissioner of CGST- 2019(24) GSTL 403 (T). ● Binjrajka Steel Tubes Ltd. Vs. Commissioner of C. Ex., 2016 (342) EL T 302 (T) ● Roma Henny Security Service Pvt. Ltd. Vs. Commissioner of Service Tax, Delhi, 2018 (8) G.S.T.L. 239 (Del.) ● Autobahn Enterprises Pvt. Ltd. VersusCommr. of Service Tax, MumbaiI- 2022 (56) G.S.T....
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....d by the appellant from the car dealer, we find that the relationship between the appellant and the dealer is on a principal to principal basis. Only because some incentives/discounts are received by the appellant under various schemes of the manufacturer cannot lead to the conclusion that the incentive is received for promotion and marketing of goods. It is not material under what head the incentives are shown in the Ledgers, what is relevant is the nature of the transaction which is of sale. All manufacturers provide discount schemes to dealers. Such transactions cannot fall under the service category of Business Auxiliary Service when it is a normal market practice to offer discounts/institutions to the dealers. The issue is settled in the case of Sai Service Station (supra). Therefore, we reject the appeal of the department." c) Recently in the case of M/s. Dunac Automobiles Pvt. Ltd. Versus Commissioner of CGST & Central Excise, Jodhpur - 2024 (8) TMI 206 - Cestat New Delhi the Tribunal held that relationship of the assessee and the manufacturer of Cars is covered the dealership agreement executed between them. Even scrutiny of the agreement it transpires that the agr....
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.... Motors Guj Pvt Ltd. ● Invoice for sale of above vehicles by the appellant M/s Infinium Motors Pvt Ltd to their customers: From the above invoices, it is clear that transaction between M/s. Toyota Kirloskar Motors Pvt Ltd., and the appellant is of purchase and sale of the vehicles on principal to principal basis and in turn the same vehicle purchased by the appellant was sold by the appellant to the customers on principal to principal basis and not on behalf of M/s Toyota Kirloskar Motors Pvt Ltd. Therefore, the appellant in this transactions is not an agent of M/s. Toyota Kirloskar Motors Pvt Ltd but a buyer of goods. In the course of this trading activities the seller M/s Toyota Kirloskar Motors Pvt Ltd. gives incentive to the appellant on the basis of quantum vehicles purchased by them from M/s Toyota Kirloskar Motors Pvt Ltd. This incentive is nothing but trade/ quantity discount against the purchase of the vehicle by the appellant from M/s Toyota Kirloskar Motors Pvt Ltd. This fact is not under dispute. 5.4 From the record, it is observed that this issue had been raised earlier also in the appellant's own case by the department, wherein the Com....
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....n and marketing of goods. It is not material under what head the incentives are shown in the Ledgers, what is relevant is the nature of the transaction which is of sale. All manufacturers provide discount schemes to dealers. Such transactions cannot fall under the service category of Business Auxiliary Service when it is a normal market practice to offer discounts/institutions to the dealers. The issue is settled in the case of Sai Service Station (supra). Therefore, we reject the appeal of the department." ● Rohan Motors Ltd. V/s. CCE, Dehracun- 2021(45) GSTL 315 (Tri.- Del.) "10. As noticed above, the appellant purchases vehicles from MUL and sells the same to the buyers. It is clear from the agreement that the appellant works on a principal to principal basis and not as an agent of MUL. This is for the reason that the agreement itself provides that the appellant has to undertake certain sales promotion activities as well. The carrying out of such activities by the appellant is for the mutual benefit of the business of the appellant as well as the business of MUL. The amount of incentives received on such account cannot, therefore, be treated as considerat....
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....ellant to the individual traders are clearly sale transactions. Hence no service is involved. As per the above facts, we are of the clear view that a trading margin cannot be subject matter of levy of service tax. Accordingly, the impugned order is set aside and the appeal is allowed." From the above judgments, it is evident that the fact of the present case and that of the cases cited above as well as the nature of transactions i.e. purchase and sale of the goods are identical and it was consistently held that any incentive/discount given by the motor vehicle manufacturer as a seller of vehicle to the dealer as purchaser of the vehicle will not amount to Commission under Business Auxiliary Service. Therefore, the same being not consideration of any service shall not be liable to Service Tax. Following the above judgments and discussion made by us hereinabove, we are of the considered view that the incentive given by M/s Toyota Kirloskar Motors Pvt Ltd to the appellant is not an amount of commission but being a trade discount is not liable for Service Tax. In view of the above judgments it is settled law that any incentive/commission given by the car manufacturer ....
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....jarat High Court had held that extended period is not invocable if the details/information provided by him were in accordance to the format prescribed in the returns. The relevant para is reproduced hereunder: "32..... Further, the format of ER-2 Returns is prescribed by the Government and, therefore, an assessee cannot be accused of suppression of facts if the details and information were provided by him in accordance with the format of the Return unless he provides any wrong information in the Return which is not the case as set-up by the Revenue." In view of the above judgments, it is observed that The appellant has not suppressed any fact with intent to evade service tax as none of the ingredients is satisfied such as suppression, omission or failure to disclose wholly or truly all material facts required for verification of assessment by the Appellant or where the Appellant had an intention to evade the payment of tax, whereas in the present case. Therefore the entire demand is also hit by limitation apart from merit of the case. 5. As a result, the impugned order is set aside. Appeals are allowed with consequential relief. (Pronounced in the open court on 24....