TMI Blog2018 (10) TMI 1993X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal in case of AUTOMOTIVE MANUFACTURERS PRIVATE LTD VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, NAGPUR [ 2015 (2) TMI 972 - CESTAT MUMBAI] , wherein it was held that we do not understand how service tax levy would apply especially when the goods are subject to sales tax/VAT on a value inclusive of handling charges. It is not in dispute that the handling charges are incurred in connection with the procurement of the parts. If that be so, they will obviously form part of the value of the goods when they are subsequently sold. Sale of spare part, sold while servicing of the motor vehicle, which the department intends to include in assessable value in terms of Section 67 of the Finance Act for payment of service tax - HELD THAT:- The issue decided in favour of appellant in M/S TANYA AUTOMOBILES PVT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, MEERUT-I [ 2016 (1) TMI 704 - CESTAT ALLAHABAD] where it was held that the cost of items supplied/sold and there is documentary proof specifically indicating value of the goods, the demand of Service Tax against the assessee for the cost of the goods supplied during repair does not appear sustainable. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department these services were liable to be included for the purpose of payment of service tax in terms of Section 67 of the Finance Act. In addition to above, demand of irregular credit availed on insurance service, advertisement and service of courier service etc. were also raised. 3. The appellant contested the aforesaid show cause notices however, the same did not find favour the adjudicating authority accordingly the impugned order was passed. 4. The learned Advocate, on behalf of the appellant, submits that as far as the service tax chargeable under category of authorised service station service, they have paid the duty on the service component involved therein, however, did not pay the service tax by including the cost of sale of spare part, which according to the appellant is nothing but the sale. The appellant is also paying Value Added Tax on such sale and also filing returns under State VAT law. Further, the learned Advocate submitted that this issue is no longer res integra in view of the decision of Tanya Automobile (P) Ltd. Vs. Commissioner of C. Ex. S.T., Meerut-I 2016 (43) STR 155 (Tri.- All.). 5. Regarding the payment of service tax commission /incen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as commission/incentive merely as a management terminology. Learned Chartered Accountant for appellant places reliance in the decisions of the Tribunal in Jaybharat Automobiles Limited v. Commissioner of Service Tax, Mumbai [2015-TIOL-1570-CESTAT-MUM = 2016 (41) S.T.R. 311 (Tri.)], Sai Service Station Limited v. Commissioner of Service Tax, Mumbai [2013-TIOL-1436-CESTAT-MUM = 2014 (35) S.T.R. 625 (Tri.)], Tradex Polymers Private Limited v. Commissioner of Service Tax, Ahmedabad [2014 (34) S.T.R. 416 (Tri.-Ahmd.)] and Garrisson Polysacks Private Ltd. v. Commissioner of Service Tax, Vadodara [2015 (39) S.T.R. 487 (Tri.-Ahmd.)]. In re Jaybharat Automobiles Limited, the Tribunal held that 6.5 On the appeal by Revenue on the issue of incentives received by the appellant from the car dealer, we find that the relationship between the appellant and the dealer is on a principal to principal basis. Only because some incentives/discounts are received by the appellant under various schemes of the manufacturer cannot lead to the conclusion that the incentive is received for promotion and marketing of goods. It is not material under what head the incentives are shown in the Ledgers, what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Wonder Cars Pvt. Ltd. v. Commissioner of Central Excise, Pune-I - 2016-TIOL-190-CESTAT-MUM has held that amount collected as extra charges for RTO registration is not covered under support services of business and commerce . 8. In view of the foregoing, the Service Tax liability confirmed under Business Auxiliary Service for the amount of RTO registration fees is set aside. As regards the penalty imposable, we find the Service Tax liability of the amounts received from the various financial institutions, whether is taxable otherwise was settled by the Larger Bench, there were two different streams of the decisions contradicting each other. As the issue needs to be settled by the Larger Bench, the appellant having discharged Service Tax liability and interest thereon, this is a fit case for invoking Section 80 of the Finance Act, 1994 to set aside penalties. Invoking the provisions of the Section 80 of the Finance Act, 1994, we set aside the penalties imposed by the adjudicating authority. 6. The appellant is before us in an identical situation and we, therefore, set aside this portion of the demand also. 8.1 Similarly, service tax on RTO charges is also cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation. - For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, inputs means all goods or services intended for use by the client; (v) production or processing of goods for, or on behalf of the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory It can be seen from the above definition prior to 10-9-2004 the services may not be applicable in issue in hand, as appellant may not be providing promotion or marketing of service provided by the client or any customer care service on behalf of the client. Appellant is helping their customer who purchase the vehicles with registration as per Motor Vehicle Act. Such registration is mandatory fees. The appellant, presently is working by hire, which are not in respect of any service as the enumerated in the definition of Business Auxiliary Service either prior to or post-10-9-2004. 7. In our considered view helping the purchaser with registration with the RTO, can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude in assessable value in terms of Section 67 of the Finance Act for payment of service tax, is also decided in favour of appellant in case of Tanya Automobiles (P) Ltd. (supra). The relevant para of the said order is quoted as under : 7. Heard learned DR, who supports the impugned order. On query from the Bench, as regards the matter has been settled in view of the Board s letter dated 27-9-2013, the learned DR submits that the Tribunal may pass appropriate order. 8. Having considered the rival contentions and in view of the settled legal position in the case of Samtech Industries (supra), upholding the order of this Tribunal by the Hon ble High Court of Allahabad and also in view of the letter of the C.B.E. C. accepted the legal position that the cost of items supplied/sold and there is documentary proof specifically indicating value of the goods, the demand of Service Tax against the assessee for the cost of the goods supplied during repair does not appear sustainable. In this view of the matter, we set aside the impugned order and allow the appeal with consequential benefits. 9. Regarding availment of Cenvat credit on the various input services, the same has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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