TMI Blog2018 (6) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... r on remand. - Appeal No. ST/50649/2014-DB - ST/A/52080/2018-CU[DB] - Dated:- 23-5-2018 - Shri Anil Choudhary, Member (Judicial) And Shri C.L. Mahar, Member (Technical) Shri Manish Gaur, Advocate for the Appellant Shri Sanjay Jain, DR for the Respondent Per Anil Choudhary: 1. The issue in this appeal relates to levy of Service Tax on certain receipts by the appellant, a dealer of motor vehicles, for the disputed period, under the fact that they have filed their ST-3 returns periodically and paid the admitted taxes. 2. The appellant, Commercial Auto Dehradun Pvt. Ltd., is a dealer of Hyundai Motors India Ltd. (HMI for short) and are engaged in servicing and repair of motor vehicles as well as sales of new vehicles. They are registered with the Service Tax Department under the category of Authorized Service Centre , Business Auxiliary Services , etc. Show cause notice dated 8th October 2012 was issued for the period April 2007 to March 2012 invoking the extended period of limitation, as upon scrutinization of the ST-3 returns the jurisdictional officer requisitioned certain documents and information, which were submitted by the appellant on 28 th May, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (-)3023257 2008-09 32070885 112326 31958559 12.36% (-)3950078 2009-10 24843853 0 24843853 10.3% (-)2558915 2010-11 27058472 22693423 4365049 10.3% (-)449600 2011-12 11184887 19088896 7904009 10.3% (+)814113 Total 91,67,737 3. The revenue thus worked out an amount of service tax short paid at ₹ 1, 27, 17, 906/-. The aforementioned amounts mainly fall under the following account heads as per the final accounts of the appellant namely: Following income as taxable services:- i. Workshop Receipts ii. Warranty Receipts iii. Migration Service Income iv. Incentive HMIL Trade Discount/ Discount v. Incentive HMIL Retail/Retail Discount vi. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the demand for extended period is not sustainable. 7. The Ld. Counsel with respect to each account heads under dispute have submitted as follows S.NO. PARTICULAR DESCRIPTION 1. Work Shop Receipts Income from Workshop such as labour charges 2. Warranty Receipts When vehicles under warranty are repaired, then the expenses incurred on such vehicles were reimbursed by Hyndai Motors India Ltd. Nothing is charged to customer. The amount reimbursed are charged to tax. 3. Freight on Warranty Receipts/ Handling Other Charges When parts which were replaced from the vehicle repaired under warranty, was sent back to Hyndai Motors, for the freight incurred for such transportation is reimbursed by Hyundai Motors. 4. Sublet Warranty Receipts Other sublet warranty receipts When some work is done from the outsiders for vehicle under warranty and claim is sent to Hyundai Motors, that claim is reimbursed by Hyundai Motors in name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of Hyundai Motors if the new customer is employed in the new customer is employed in the specified companies then he is eligible for corporate discount. When the discount is provided to customer it is treated as an expense and when Hyundai reimburses the amount it is shown as income under this head. 14. Incentive-Exchange According to the scheme of Hyundai Motors if the new customer is purchasing a vehicle in exchange of his previous vehicle then he is eligible for exchange discount. When the discount is provided to customer it is treated as an expense and when Hyundai reimburses the amount it is shown as income under this head 15. Incentive -Loyalty According to the scheme of Hyundai Motors if a customer has previously purchased any vehicle of Hyundai and now also he is purchasing vehicle of Hyundai then his is eligible for loyalty discount. When the discount is provided to customer it is treated as an expense and when Hyundai reimburses the amount it is shown as income under this head 16. Incentive-ICICI Lombard This inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the agreement dated 10/04/2006, which is between the appellant-assessee and the manufacturer- HML wherein the narration part, it is stated Dealer is an integral part of a network, authorized Hyundai dealer is dedicated to the vigorous and effective promotion and sale of Hyundai products. Accordingly, dealer agrees to use its best efforts to effectively promote and sell Hyundai products to customers in dealers territory and also achieve the targets and market share fixed by HMI from time to time. 10. Accordingly, it was concluded by Ld. Commissioner that all these receipts are in the nature of business Auxiliary Service, as well as, some receipts are under the category of Authorized Service Station and accordingly taxable. It was further observed that it is not disputed that the receipts in question are incentives under DRF and HMIL schemes, but appellant contested the same on the basis that being the dealer of HMIL their relation is that of principal to principal basis and not that of principal and agent, and also contested that they are not the commission agent of HMIL. The Ld. Commissioner further observed that as per the definition of BAS, as provided under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax, Mumbai vs. Sai Service Station Limited, 2014 (35) STR 625 (Tri-Mumbai) 2. Toyota Lakozy Auto Pvt. Ltd. Vs. CST, Mumbai, 2017 (52) STR 299 (Tri-Mum.) 3. Sharyu Motors V/s CST, Mumbai, 2016 (43) STR 158 (Tri-Mumbai) 4. CST V/s Jaybharat Automobiles Ltd, 2016 (41) STR 311 (Tri. Mum.) 5. My Car Private Ltd. V/s CCE, Kanpur, 2015 (40) STR 1018 (Tri-Del) 6. Pagariya Auto Centre V/s CCE, Aurangabad, 2014 (2) TMI 98 (CESTAT, New Delhi-LB) 7. Auto Links Enterprises Private Ltd V/s CCE, Delhi-2018 (5) TMI 723-CESTAT, New Delhi 13. We further observe that in view of the ruling of Larger Bench of this Tribunal in Pagariya Auto Centre (supra) the taxability of receipts from insurance and finance companies needs to be considered in detail, with reference to agreement between the parties. Further, we find that the appellant have claimed that certain receipts which were earlier being shown under the category of Authorized Service Station have been in the later years 2010 11 and 2011 12 disclosed under the head Business Auxiliary Service . Accordingly, we remand the matter for the normal period to the Original Adjudicating Authority w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
