TMI Blog2019 (1) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... to the insurance company along with the insurance premium will not make any difference, when the assessee-appellants are independently providing the service of promotion or marketing, which is covered by ‘Business Auxiliary Service’ as defined in Section 65(19) of Finance Act, 1994 read with Section 65(105)(zzb) of Finance Act, 1994. Penalty - Held that:- Further, the Tribunal has dropped the penalty on the ground that the subject matter involved relates to interpretation issue - following the same, the penalty is dropped. Appeal allowed in part. - ST/96/2008-DB - Final Order No. 20092/2019 - Dated:- 23-1-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri Kuriyan Thomas, Advocate For the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd perused records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without appreciating the facts and the law. He further submitted that the appellant was not providing or promoting any service which was provided by MIBL and hence there is no justification in holding that the appellant is liable to pay service under the heading BAS. He further submitted that commission / remuneration received by them has already been suffered service tax at the hands of MIBL / MUL. He also submitted that service tax cannot be charged twice on the very same transaction as MUL have already paid service tax on the very same transaction in question under the category of Insurance A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. CCE, ST C, Bangalore [2018(9) GSTL 412 (Tri. Bang.)] ii. Competent Automobiles Co. Ltd. Vs. CST [2017-TIOL-223-SCST] iii. CST, Mumbai Vs. Jaybharat Automobiles Ltd. [2016(41) STR 311 (Tri. Mum.)] iv. Pagariya Auto Center Vs. CCE, Aurangabad [2014(33) STR 506 (Tri. LB)] 6. Learned AR further submitted that the Hon ble High Court of Kerala has not dismissed the appeal of the Revenue on merits but has only held that the High Court has no jurisdiction to decide such issues. He further submitted that after the decision of the Tribunal in the appellant s own case cited by the counsel for the appellant, there has been a series of decisions by the Tribunal wherein the Tribunal has held that the services rendered by the assessee fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded of the appellants, it is clear that the appellants are doing the service of promotion or marketing of service viz., issuance of insurance policies on behalf of MIBL. The fact that service tax was being paid by MUL to the insurance company along with the insurance premium will not make any difference, when the assessee-appellants are independently providing the service of promotion or marketing, which is covered by Business Auxiliary Service as defined in Section 65(19) of Finance Act, 1994 read with Section 65(105)(zzb) of Finance Act, 1994; therefore, the assessee-appellants are liable to pay Service Tax on the services performed by them to M/s. MIBL, a fully owned subsidiary of MUL. 4.2 In this regard, CBEC has also issued Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealers share part of their commission with their customers to attract them. However, this is an independent transaction between the automobile dealer and the purchaser of the vehicle, and does not involve the service rendered by the automobile dealer to the finance company. Therefore, the tax payable by the dealer would be on the gross amount received from the financial company and not on the balance amount, i.e., after excluding the amount that he passes on to the customer. 4.3 The Tribunal in the case of TVS Motor Co. Ltd. vs. CCE (supra) on the subject issue has observed as under: 12. Facts and evidence aforesaid when tested on the touchstone of Section 65(105)(zzb) read with Section 65(19) of the Act that warrants taxat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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