TMI Blog2011 (11) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicles and they had entered into agreements with different banks such as HDFC Bank, ICICI Bank, ABN Amro Bank, Chartered Bank and Citi Bank and also with Non-Banking Financial Companies; (NBFCs) such as Ford Credit Kotak Mahindra Ltd. to market car-loan to potential customers. For loan taken by the customers, these appellants got commission from the banks and NBFCs. The issue in this appeal is whether service tax is to be paid on such commission categorizing the activity of the Appellants as business auxiliary service . 2. The activities carried out by the Appellants, as stated briefly in the impugned order, are briefly as under : Name of the Bank/Company Scope of the serviced provided by SCML as per the agreement entered with the Bank/Company Citi Bank (i) To facilitate certain activities of the Bank and representing that it has requisite infrastructure, staff and expertise to carry out the services in an efficient manner; (ii) To act as a facilitator for the prospective customers; (iii) To scrutinize the application, interview the borrowers, find out the authenticity/veracity of data/information; (iv) To take due and proper care and custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the client; or (d) Any incidental or auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relation services, and includes service as a commission agent, but does not include any information technology service. 5. The entry for Business Auxiliary Services from 10-9-2004 is as under : 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 of services, which are inputs for the client; or (v) Production of goods on behalf of the client; or (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, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed exemption under Notification 8/2003-S.T., dated 20-6-2003. This matter has not been examined. (vi) In the facts of the case extended period of limitation cannot be invoked for raising demand. They submit that they were registered with department for paying service tax since 10-9-2004 and all the facts were known to the department. So Show Cause Notice issued on 20-4-2006 by invoking extended period of time is not maintainable. (vii) Board s clarification issued vide Circular No. 87/05/2006-S.T., dated 6-11-2006 is oppressive in nature and such circular cannot be given retrospective effect as held by the Apex Court in the case of Suchitra Components Ltd. v. C.C.E. - 2007 (208) E.L.T. 321 (S.C.) = 2008 (11) S.T.R. 430 (S.C.). (viii) The penalties imposed are not warranted because there was no fraud, suppression or misdeclaration by the Appellants. At any rate because of the confusion in the scope of the entry they are entitled to the benefit of Section 80 of the Finance Act, 1994 for waiving penalty. 8. He also submits that Commissioner (Appeals) did not appreciate the following grounds properly : (i) The demand was time barred; (ii) In identical situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and declare to the Department the commissions received by them. So the extended period should be invoked in this case. He points out that the issue of suppression is discussed in detail in para 9.14 of the adjudication order. 10. The ld. SDR relies on the following decisions to buttress his argument that the impugned services would get classified under Business Auxiliary Services : (i) Cross Road Auto Pvt. Ltd. v. C.C.E. - 2009 (15) S.T.R. 181 (Tri.- Del.) (ii) C.C.E. v. Sanfin - 2009 (13) S.T.R. 551 (Tri.-Kol.) (iii) C.C.E. v. Vinayak Leasing and Finance - 2009 (13) S.T.R. 35 (Tri.-Del.); (iv) C.C.E. v. Chambal Motors (P) Ltd. - 2008 (9) S.T.R. 275 (Tri.- Del.) (v) Malpani Finance v. C.C.E. - 2008 (10) S.T.R. 300 (Tri.-Del.); (vi) Roshan Motors Ltd. v. C.C.E. - 2009 (13) S.T.R. 667 (Tri.-Del.). 11. The entry prior to 10-9-2004 covered promotion or marketing of services provided by client . In this case the Banks/NBFCs were the client of the Appellant and the Appellant was promoting the services namely sanctioning of car-loans to the loan seekers. This part of the definition has remained the same prior to 10-9-2004 and thereafter. Clause (iv ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
