TMI Blog2014 (2) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... , the transactional documents and other evidence on record indicates a substantial activity falling within the contours of any of the integers of the definition of BAS, spelt out in Section 65 (19), then it would be legitimate to conclude that BAS is provided - The appeal stand remitted to the appropriate Bench in the West Zonal Bench of this Tribunal for adjudication on merits - Decided in favour of assessee. - Service Tax Appeal No. 103 of 2010-MUM - Interim Order No. M/35/2014-WZB/SMB(C-IV)/LB - Dated:- 12-9-2013 - G Raghuram ,Rakesh KumarAnd Sahab Singh, JJ. For the Appellant : Shri Sushant Murthy,Advocate For the Respondent : Shri S.K. Sinha, CDR Sh K.S. Mishra, Amresh Jain Sh. Govind Dixit, DRs PER : G. Raghuram The learned single Member (Judicial) of the West Zonal Bench of this tribunal by the order dated 12.10.2012 referred to a Larger bench, the issue: "Whether the table space provided by the Automobile dealers to financial institutions fall under Business Auxiliary service or not?" 2. The order of reference noticed a conflict in two decisions of this Tribunal pronounced by Division Benches in Tribhuvan Motors Ltd. vs. CST, Mangalore 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved by a Division Bench. 7. It is therefore clear that the jurisdiction to adjudicate upon a dispute involving classification of services is conferred to a Division Bench. The substantive appeal ought therefore to have been placed before the ld. Division Bench for adjudication. It however appears that neither the assessee nor Revenue had sensitized the ld. Single Member to this legal position. In any event, since the ld. single Member did not adjudicate upon the merits of the appeal, no issue as to an exercise in excess of jurisdiction arises. The order has merely referred a conflict of opinion between judgments of this Tribunal for reference to a larger Bench. The order of reference is therefore not per se invalid, in the circumstances. 8. The specific issue referred to this larger Bench, is, in our considered view, incoherently structured. Provision of table space by automobile dealers to financial institutions may have several underlying purposes and may be predicated upon varieties of transactional instruments. Such a provision (of table space) may be incidental to lease of immovable property by the automobile dealer to the bank/financial institutions or it may be an inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited vs. CST, Delhi 2012 (25) STR 483 ; and Chambal Motors (P) Ltd. vs. CCE, Jaipur 2013 (31) STR 245 (Tri.Del.) . We notice that the decisions of this Tribunal in Roshan Motors Ltd; South City Motors Ltd,; TVS Motor Co. Ltd. and Brij Motors Pvt. Ltd 2012 (25) STR 489 (Tri.Del) have concluded that the transaction in issue in the facts apparent in those appeals, were classifiable as BAS. A contrary view is recorded in Silicon Honda, Chadha Auto Agencies and Tribhuvan Motors 2007 (8) STR 505 (Trib.). 11. The earliest of the decisions referred before us is the decision in Silicon Honda. This is a judgment of a ld. Single Member. We notice that in this appeal, the assessee's challenge to the adjudication order was on the basis that the conclusion that the assessee had provided BAS was erroneous since Revenue had concluded that the assessee had provided BAS by acting as a commission agent to a bank/financial institution and table space was also provided to representatives of such bank / financial institution. The appeal was allowed by this Tribunal with the observation that the adjudication order had failed to refer to any evidence as to financial institutions paying commission to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipartite agreement; and whether the amounts became payable to the assessee and if so on what basis. The Tribunal directed the Commissioner (Appeals) to analyse the nature of the transactions to identify whether the activities fall within BAS. 13. In Chadha Auto Agencies the assessee was alleged to have been arranging loans from various financial institutions/banks for hire purchase, to its customers and to be promoting/marketing the products / services of financial institutions / banks and receiving consideration described variously as pay out/ incentive / commission from financial institutions / banks. Revenue categorized this activity as BAS. The assessee contested the classification. While the adjudicating authority held in favour of Revenue, the Commissioner (Appeals) allowed the appeal of the assessee and concluded that the remuneration received by the assessee was towards Business support service ; and that Revenue also failed to establish BAS. The appellate authority recorded a finding that the assessee had merely provided space and furniture to financial institutions to sell their products. Dismissing the further appeal by Revenue, the Tribunal concurred with the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluded that the activities of the assessee were covered within the defined BAS, namely promotion and marketing of services provided by the client. The earlier decisions of this Tribunal in Bridgestone Financial Services vs. Commissioner 12 and in Roshan Motors Limited (supra) were referred to with approval. 16. In TVS Motor Co. Ltd. (supra), the analysis of facts revealed that the assessee was providing services to banks and insurance companies and was receiving referral charges for the same. On analysis of the relevant transactional documents on record the Tribunal concluded that the agreements revealed close association of the assessee with banks/financial institutions for promotion and marketing of banking and financial services; that a nexus of the service provided by the assessee as input for providing the output of banking and financial services is also revealed; that under the agreements, the assessee was required to inform its dealers and authorized service centres about the arrangement with the financial institutions and the buyers of vehicles must also be informed about availability of financial facilities. The dealers and authorized service centres of the assessee wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other decisions which were cited at bar, it is clear that no uniform principle emerges as would guide determination of whether a particular transaction involving an interface between an automobile dealer and bank or financial institution would per se amount to BAS. The identification of the transaction and its appropriate classification as the taxable BAS or otherwise must clearly depend upon a careful analysis of the relevant transactional documents. Only such scrutiny and analysis would ensure rational classification of the transaction. 21. Where mere space is provided along with furniture for facilitating accommodation of representatives of financial institutions in the premises of an automobile dealer and consideration is received for that singular activity, such consideration may perhaps constitute a rent for the provision of space and associated amenities. Such restricted relationship/transaction may not amount to BAS. If on the other hand, the transactional documents and other evidence on record indicates a substantial activity falling within the contours of any of the integers of the definition of BAS, spelt out in Section 65 (19), then it would be legitimate to conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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