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2016 (9) TMI 187 - CESTAT MUMBAI

2016 (9) TMI 187 - CESTAT MUMBAI - TMI - Imposition of penalty – section 76 of the Finance Act, 1994 - Business auxiliary services - section 65(105)(zzb) of Finance Act, 1994 – extended period of limitation – Held that: - marketing of financial products by automobile dealers is taxable as ‘business auxiliary service’. The assessee is not in dispute over that. The records indicate that tax was being paid by assessee at least after investigation commenced. The activities of the assessee are not ne .....

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business or commerce – Held that: - The appeal relating to refund claim has not brought out any evidence that tax has been paid in excess of dues. Setting aside of the order of adjudicating authority on ground of limitation does not entitle the assessee to refund – appeal disposed off – decided against appellant. - ST/248 & 667/2010 - A/89054-89055/16/STB - Dated:- 3-2-2016 - Shri M V Ravindran, Member (Judicial) and Shri C J Mathew, Member (Technical) Shri R.S. Indani, Advocate for the asse .....

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te relates to the commission of Rs. 1,54,52,808/- received as consideration between 1st October 2006 and 31st March 2009 on which the appellant was alleged to be liable to tax of Rs. 18,98,133/- for rendering business auxiliary service taxable under section 65(105)(zzb) of Finance Act, 1994. On confirmation of this demand against which ₹ 9,71,341/- paid by the assessee as tax for providing support service of business or commerce , both assessee and Commissioner of Central Excise, Aurangaba .....

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Central Excise, AP [2006 (197) ELT 464 (SC)]. The departmental appeal challenging the dropping of penalty under section 76 of Finance Act, 1994 by the original authority was dismissed. Appeal of Revenue prays for the quashing of the order of the appellate authority and restoration of the order of the original authority with imposition of the penalty dropped by the original authority. 2. At this stage, we take notice of the two reliefs sought by Revenue: one for setting aside the impugned order .....

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fficer below the rank of Commissioner lies before Commissioner (Appeals) in the first instance. A second appeal before us merges the order of the lower authority within the order of first appellate authority. Setting aside of the order of Commissioner (Appeals), ipso facto, restores the original order. Alteration of that order is beyond our jurisdiction in view of the jurisdiction conferred on Commissioner (Appeals) under section 128. The framing of an appropriate prayer in appeal before us is a .....

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paid on commission/incentives received from finance companies by challans between 29th August 2007 and 8th April 2008 for rendering of support services of business or commerce for the period from June 2006 to March 2008. Refund application was filed on 27th August 2008 claiming that, as the assessing officer had denied them categorization as provider of support services of business or commerce , the tax so paid was liable to be returned. 4. The assessee, discharging tax on commission/incentive u .....

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3 to September 2006 on commission/incentives received for rendering business auxiliary service was adjudicated on 13th July 2009 with the direction that the amount covered by refund claim overlapping with this period be adjusted towards the confirmed demand. The authority, before whom refund claim was preferred, concluded that tax paid as provider of support service of business or commerce was indeed payable as provider of business auxiliary service and that payment having been made under one ca .....

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09, was set aside in appeal vide order no: AGS (224)/107/09 dated 23rd October 2009 of the Commissioner of Central Excise & Customs (Appeals), Aurangabad on ground of limitation. 6. From the above, it appears that tax of Rs. 31,17,912/- was demanded and confirmed under the head of business auxiliary services for the period from 1st July 2003 to 31st March 2009 in two separate proceedings. It also appears that, after investigation commenced, the assessee had been depositing tax on the commiss .....

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which was rejected by the two lower authorities. Appeal of the assessee relates to the rejection of this refund claim. The first appellate authority held the demands in the two notices to be barred by limitation of time and Revenue is in appeal against the dropping of the second demand. 7. It is now well-settled that marketing of financial products by automobile dealers is taxable as business auxiliary service . The assessee is not in dispute over that before us. The records indicate that tax wa .....

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t only if that bar no longer holds good. We note that a show cause notice invoking the extended period from 2003 to 2006 was issued in June 2008. On very same set of facts, but for a later period, was the show cause notice leading to the order impugned by Revenue issued. It is paradoxical that Revenue, armed with full facts relating to non-payment of tax for the earlier period, should claim to have been hoodwinked by the assessee into believing that no taxable service was being rendered for the .....

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show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that there was no suppression of facts on the part of the assessee/appellant. 10. For the reasons stated above, Civil Appeal Nos. 2747 of 2001 and Civil Appeal No. 6261 of 2003 filed by the assessees are accepted and the im .....

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