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TMI Blog2019 (11) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... ive customers. After selection of the vehicle for purchase, the customers are guided by the personnel of the petitioner to available options for finance that are offered at the site by representatives of finance companies. 2. The Writ Petitioner in its affidavit states that 'it is with a view to cover such segment of customers i.e., 'salaried employees or businessmen' that the firm encourages them to approach the finance companies'. Furthermore, the petitioner also encourages such availment of finance with a view to improving its own business as evidently the availability of finance would improve the possibility of purchase and in turn, improve the business prospects of the petitioner. As can be seen from the statement reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent/Service Tax Authorities calling upon it to appear and furnish details in connection with the on going enquiry for subjecting the amount of commission received, to service tax. Hence the present Writ Petition challenging summons dated 28.09.2010 calling for the attendance of the petitioner along with TDS statements for the previous five years, Credit/Debit notes received from finance company/TVS Motor Company and free service details. 5. The petitioner relies upon the decisions of the Larger Bench of the Customs, Excise and Service Tax Appellate Tribunal in the case of M/s.Pagariya Auto Center V. CCE, Aurangabad (2014-TIOL-141-CESTAT-Del-LB) and of the South Zonal Bench of the CESTAT, Chennai in IndusInd Bank Ltd. V. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner. The apprehension of the petitioner appears to be that the respondent has pre-determined the issue and is hence merely seeking to collate requisite documents to enable the issuance of a show cause notice without application of mind as to whether such show cause notice is actually called for or not. 9. The relevant statutory provision in terms of which the commission received is sought to be brought to tax is Section 65(19) of the Act dealing with 'business auxiliary service', reading as follows: (19) "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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods or services; or (iv) undertakes any activities relating to such sale or purchase of such goods or services; (b) excisable goods" has the meaning assigned to it in clause (d) of section 2 of the Central Excise Act, 1944(1 of 1944); (c) "manufacture" has the meaning assigned to it in clause (f) of section 2 of the Central Excise Act, 1944(1 of 1944).' 10. In the present case, the question as to whether the petitioner is actually rendering services to the finance companies is one of fact. One cannot deny that there is a symbiotic relationship between the petitioner and the financial institutions and one does benefit from the efforts of the other in terms of furthering their own respective business interests. The petitioner by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and may not amount to business auxiliary service. If, on the other hand, the transactional documents and other evidences on record indicate substantial activity falling within the contours or integers of the definition of business auxiliary service, then one may come to the legitimate conclusion that the services are taxable. 13. These constitute questions of fact and cannot be looked into in a Writ Petition in terms of Article 226 of the Constitution of India. It would thus be appropriate to direct the petitioner to cooperate with the on-going enquiry, appear before the respondent for completion of proceedings and allow the same to come to a logical conclusion. Having said so, the tenor of the counter filed by the respondent appears to i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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