TMI Blog2024 (4) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... er the category of Business Auxiliary Service is not sustainable in law and therefore, the same is set aside. Charges received by the appellant for extended warranty - HELD THAT:- It is a settled law that the service tax is not liable to be paid under Business Auxiliary Service for warranty commission. Extended period of Limitation - HELD THAT:- No case has been made by the Department to show any positive act with intent to evade payment of duty. It has been held in the case of Sunshine Steel Industries [ 2023 (1) TMI 638 - CESTAT NEW DELHI] which is upheld by the Hon ble Supreme Court in [ 2023 (7) TMI 479 - SC ORDER] holding that the extended period cannot be invoked for a demand raised on the basis of audit. Therefore, we find that extended period cannot be invoked and in the present case, the substantial demand is beyond the period of limitation. Penalty - HELD THAT:- The issue does not arise when the demand itself is not sustainable. The impugned orders are not sustainable in law and therefore, set aside - appeal allowed. - SH. S. S. GARG, MEMBER (JUDICIAL) AND SH. P. ANJANI KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Sh. Sudhir Malhotra, Advocate with Sh. Dharinder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were confirmed by the Original Authority; penalties were also imposed. Aggrieved by orders of the Original Authority, the appellant filed appeals before the Commissioner (Appeals) who rejected the appeals. In Appeal No. ST/55535/2013, the impugned order was passed by the learned Commissioner, Central Excise Service Tax, Ludhiana confirming the demand of service tax; penalties under Sections 76, 77 and 78 were also imposed. Aggrieved by the said impugned orders, the appellant has preferred the present appeals. 3. Heard both the parties and perused the records. 4.1 The learned Counsel for the appellant submits that the impugned orders are not sustainable in law and are liable to be set aside as the same have been passed without properly appreciating the facts and the law; and binding judicial precedents on the identical issue. 4.2 He further submits that the services rendered by the appellant do not fall under Business Auxiliary Service as defined under Section 65(19) of the Finance Act, 1994. He further submits that the Business Auxiliary Service has been brought under service tax ambit vide Section 65(19) of the Act w.e.f. 01.07.2003 and thereafter, the definition of Business Auxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 (12) STR 287 (Tri. Bang.), wherein it has been held that the agent appointed by the bank for promoting and/or marketing their services, comes under the category of Business Support Service and not under Business Auxiliary Service . He also refers to the decision in the case of S.R. Kalyankrishnan vs. CCE, Cochin 2008 (9) STR 255 (Tri. Bang.) and submits that the Department did not file any appeal against the said decision of the Tribunal and as per the settled law, the Department cannot take contradictory stand in the same facts and circumstances of the case. 4.8 The learned Counsel also challenges the demand by invoking the extended period of limitation when the facts were in the knowledge of the Department. In this regard, he relies on the decision of Hon ble Calcutta High Court in the case of CST vs. Naresh Kumar Company Pvt Ltd 2022 (67) GSTL 324 (Cal.), wherein it has been held that show cause notice was issued invoking extended period of limitation without any clear allegation of wilful mis-statement or suppression of facts or fraud or collusion as committed by the assessee with intention to evade payment of service tax. In the absence of such factual finding, extended p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause of section 2 of the Central Excise Act, 1944. Definition of Business Auxiliary Service amended w.e.f. 10.09.2004 Business Auxiliary Service means any service in relation to, (1) 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 client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or (v) production of goods on behalf of, the client; (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (1) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any information technology service and any activity that amounts to manufacture within the meaning of clause (f) of section 2 of the Central Excise Act, 1944. Explanation - For the removal of doubts, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ftware or computerized data processing or system networking, or any other service primarily in relation to operation of computer systems. If we examine the above said definitions of Business Auxiliary Service as cited supra and amended from time to time, we will find that the appellant in no way, is promoting or marketing the services provided by the client i.e. MUL. We also find that the appellant has received the commission from MUL and not from the bank, as alleged by the Department. We also find that MUL vide its mail dated 17.05.2004 has already clarified that the dealers are not required to pay service tax on the commission received by them from MUL because MUL has deposited the applicable service tax. 8. As regards the charges received by the appellant for extended warranty, we find that it is a settled law that the service tax is not liable to be paid under Business Auxiliary Service for warranty commission. 9. Further, we find that as per the stand of the appellant in Appeal No. ST/3931/2012, no payment has been received by the appellant from CSD canteen rather it is canteen income shown as profit loss account and not the commission received on CSD canteen sale, which has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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