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TMI Blog2010 (10) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... ver India and for such shifting of the vehicles and chassis from their factories to the regional sales offices, they entered into a contract i.e., "Vehicle Transportation Contract" with the appellant M/s. Canara Motors. By virtue of the said contract, the appellant is required to arrange drivers who physically drive the chassis/vehicles from the factories to sales depot of Tata Motors. The appellants are required to maintain proper record of the vehicles entrusted to them for transportation and safe delivery of the chassis/vehicles in prescribed time, failure to do so invite damages in the form of compensation of Rs. 200 per vehicle per day. 3. After investigation, the Revenue authorities felt that the services rendered by the appellant would fall under the category of 'Business Auxiliary Services' and coming into such a conclusion, a show-cause notice dated 6-9-2007 was issued demanding service tax on the amount received as service charge from Tata Motors for the period from 1-7-2003 to 30-9-2006. The appellant herein resisted the show-cause notice mainly on the ground that the services rendered by them would not fall under the category 'business auxiliary services', but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unj. & Har.) is squarely applicable. He submits that the judgments of the Co-ordinate Bench of Tribunal in the case of CCE v. Banke Bihari Computers [2008] 17 STT 236 (New Delhi - CESTAT), Oil India Ltd. v. CCE [2008] 15 STT 423 (Kol. - CESTAT) and Assam Gas Co. Ltd. v. CCE [2009] 19 STT 95 (Kol. - CESTAT) will squarely cover the position put forward by the appellant for the entry of 'business support service' which came into service tax net with effect from 1-5-2006 and prior to that date, there is no liability under the head, 'Business auxiliary services'. 5. The learned Special Counsel on behalf of the Revenue submits that it is not contested that they are rendering services to Tata Motors. It is the submission that the plea taken by the appellant that the services rendered by them would fall under the category of 'Goods Transport Agency' i.e., transportation of goods by road services in a goods carriage. It is the submission that the charging section 66 of Finance Act, 1994 refers to sub-clause (zzp) of clause (105) of section 65, it also refers to sub-clauses (zzb) and (zzzq) relating to 'business auxiliary service' and 'business support service' respectively servicein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en, there has been non-payment of tax. Hence, it is the submission that the demands confirmed are correct and penalties imposed are also correct and the impugned order needs to be upheld. 6. We have considered the submissions made at length by both sides and perused the case records. 7. The issue involved in this case is whether the services rendered by the appellant herein to M/s. Tata Motors would fall under the category of 'business auxiliary service' or under 'business support service'. The appellant is claiming that the services rendered by them would fall under 'business support services' which became taxable with effect from 1-5-2006. The Revenue's contention is that the activity would fall under 'business auxiliary service' for the entire period. 8. It is undisputed fact that the appellant herein entered into a contract i.e., 'Vehicle Transportation Contract' with M/s. TATA Motors Ltd. Though the contract is not available on record, the statement of Shri B. Padmanabha Bhatt, Manager of M/s. Canara Motors, which is annexed to the show-cause notice clearly brings the salient clauses of the said 'Vehicles Transportation Contract'. It indicates that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "Business auxiliary service" means any service in relation to, - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or Explanation.-For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, "inputs" means all goods of services intended for use by the client; (v) production or processing of goods for, or on behalf of, the client; (vi) provision of service on behalf of the client; or (vii) a service, incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any information technology service and any activity that amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the vehicles, it cannot be said that they are providing 'business auxiliary service'. It is seen from the records that the adjudicating authority has not laid any further evidence as to whether the appellants herein were involved in the marketing or sales of the goods, except for relying upon the meaning words 'marketing' or 'sales' and the words 'in relation to', in our view specific role played by appellant as enunciated herein above, would not indicate that they providing any services relating to sale or marketing of goods, in the absence of any contrary evidence, the contractual obligation entered by the appellants needs to be considered in a proper prospective. It is seen that there is no dispute as regards the wordings of the 'contract' which is titled as 'vehicles transportation contract'. The appellant's contractual obligation is only for delivering vehicles from the factory premises of Tata Motors to their regional sale office and nothing more. To our mind, by any stretch of imagination, this service cannot be considered as being rendered in relation to marketing or sales of goods produced or provided by or belonging to the client. 9.1 It is seen that another cat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered for the very same service which is evident from the service tax registration certificate issued to the appellant on 5-12-2006. We find that an identical issue came up before the Co-ordinate Bench of the Tribunal in the case of Oil India Ltd. (supra) wherein the Bench held as under :- "5. It is settled principle of law that there is no intendment nor equity about tax. Every subject is taxed by specific letters of law. From 16-6-2005 incorporating sub-clause (zzz) to section 65(105) of Finance Act, 1994, transport through pipeline was brought to ambit of tax. Transport of crude oil through pipeline having been brought to tax specifically w.e.f. 16-6-2005, taxation thereof prior to enactment of law is inconceivable. In view of our observations and view conveyed through Board Circular and considering the enactment as above, we are of view that the impugned order has no legs to stand. Accordingly, other points canvassed by both parties and citations relied upon by them do not call for determination. The Appellant therefore succeeds and Appeal is allowed, setting aside the order of adjudication." In yet another case, in the case of Assam Gas Co. Ltd. (supra) the Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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