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TMI Blog2024 (6) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... ed other car dealers. 4.2 Since the facts of the present appeal are same as involved in the aforesaid Orders-in-Appeal, I, after following these Orders-in-Appeal, hold, as under: (i) The appellant, while carrying out the transaction with their customer, had carried out the activities of (i) trading of cars which is in the Negative List of Service (Section 66D(e) of the Act) and (i) facilitation of car delivery for which they had collected logistic charges (as part of the entire transaction). which is covered under Section 65B(44) of the Act and is neither in the Negative List of Services nor is exempted. Since these services are part & parcel of the same transaction, these services are, therefore, bundled together in the ordinary course of business; (ii) The main service under the transaction of the appellant with their customer, is trading of car and other service of facilitation of car delivery is incidental or ancillary service which facilitates the provision of the main service. Thus, it is the trading of cars which gives the bundle of services, its essential character and as such, the entire transaction of the appellant is required to be considered as trading of car, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Service Tax Rules, 1994. I, however, refrain to impose the penalty under Section 76 of the Finance Act, 1994 read with Section 174 of Central Goods and Service Tax Act, 2017. I impose a penalty of Rs.10,000/- (Rupees Ten Thousand only) upon the party under Section 77(2) of the Finance Act, 1994 read with Section 174 of Central Goods and Service Tax Act, 2017. I also impose a penalty of Rs.2,000/- (Rupees Two Thousand only) upon the party under Section 77(a) of the Finance Act, 1994 read with Section 174 of Central Goods and Service Tax Act, 2017." 2.4 Aggrieved respondent filed appeal before Commissioner (Appeals), who have allowed the appeal as per the impugned order referred in para-1 above. Aggrieved revenue has filed this appeal. 2.5 Revenue has filed this appeal stating the following grounds:- "09. If any amount realized from the customers over and above the amount of trading/sale of goods, the same could not be considered outside the purview of the Service Tax. In the instant case, M/s. My Car had collected the logistic charges over and above the ex-showroom price of the car [which represents the sale price of the car at showroom and includes all the expense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... integral to one overall supply to bundle the services as they had not charged the logistic charges when cars supplied to other Hyundai car dealers as stated by the assessee in their statement(s). (ii) Again, in the O-I-A it has been mentioned that for services to be considered as bundled service, it is necessary that different elements are not available separately. Whereas, in the present case the amount of logistic/handling charges are available separately and the same has been collected as over and above the Ex-showroom price." 3.1 We have heard Shri Manish Raj learned Authorised Representative appearing for the appellant-revenue and Shri Amit Awasthi alongwith Shri Raj Shukla learned Counsel appearing for the respondent-assessee. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 It is contention of the respondent that these charges are towards various services provided by them to their customers for facilitating them to take smooth and hassle free delivery of the cars, hence covered by the definition of service as per Section 65B(44) of the Finance Act, hence, liable to pay service tax. 4.3 We fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that on value of such parts, though used for repair and maintenance service of the vehicle will not be liable to service tax as the same was suffered VAT. In this regard the following judgments are reproduced:- (a) In Ketan Motors Limited the Tribunal held as under " 5. We have carefully considered the rival submissions. As the issue lies in a narrow compass, after dispensing with the requirement of pre-deposit, we take up the appeal itself for consideration. 5.1 In para 3.2 of the impugned order it is stated that the appellant had furnished the following information and documents vide letter dated 21-9-2011 : (i) Year wise details of value of spare parts used during the course of servicing of motor vehicles for the period 2006-07 to 2010-11; (ii) Copy of Balance Sheet, Profit & Loss Account for the year 2006-07 to 2009-10; and (iii) Copy of ST-3 returns for the period 2006-07 to 2010-11. 5.2 However, while confirming the demand, the learned Commissioner has taken the value of sale of spare parts as reflected in the balance sheets. This is incorrect. If a transaction involves only sale of spare parts, the question of levying service tax would not arise at all a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the procurement of the goods and are included in the value of the goods sold and sales tax/VAT liability is discharged on the value inclusive of the handling charges. Therefore, 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. 5.1 Section 67 of the Finance Act, 1994 mandate levy of service tax on a value or consideration received for rendering the services. Therefore, any consideration received for supply of goods is not covered within the scope of Section 67. The decisions of the Tribunal in the case of Ketan Motors Ltd. and Dynamic Motors, cited supra, also support this view. 6. Accordingly, the impugned order is clearly unsustainable in law and therefore,the same is set aside with consequential relief, if any, in accordance with law." (c) in the case of CCE vs. Seva Automotive Pvt. Limited the Tribunal held as under:- "2. The respondent, M/s. Seva Automot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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