Custom, Excise & Service Tax Tribunal
Chandigarh-I vs Joshi Auto Zone Pvt Ltd on 20 December, 2023
1 ST/2897/2012
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
CHANDIGARH
~~~~~
REGIONAL BENCH - COURT NO. 1
Service Appeal No. 2897 Of 2012
[Arising out of OIO No. CHD-EXCUS-001-COM-038-039-12 dated 29.06.2012
passed by the Commissioner of Central Excise & Service Tax, Chandigarh-I]
Joshi Auto Zone Pvt. Ltd. : Assessee(s)
Plot No. 84, Industrial Area, Phase-II, Chandigarh
Vs
Commissioner of Service Tax, Chandigarh : Revenue (s)
C.R. Building, Plot No. 19, Sector 17-C, Chandigarh
Service Tax Cross Application No. 5233 of 2012
Service Appeal No. 3368 Of 2012
[Arising out of OIO No. CHD-EXCUS-001-COM-038-039-12 dated 29.06.2012
passed by the Commissioner of Central Excise & Service Tax, Chandigarh-I]
Commissioner of Service Tax, Chandigarh : Revenue (s)
C.R. Building, Plot No. 19, Sector 17-C, Chandigarh
Vs
Joshi Auto Zone Pvt. Ltd. : Assessee (s)
Plot No. 84, Industrial Area, Phase-II, Chandigarh
APPEARANCE:
Ms. Krati Singh, Shri Aman Singh, Advocates for the Assessee
Shri Shivam Syal, Authorised Representative for the Revenue
CORAM : HON'BLE Mr. S. S. GARG, MEMBER (JUDICIAL)
HON'BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL)
ORDER No. A/60716-60717/2023
Date of Hearing:06.10.2023
Date of Decision:20.12.2023
Per : S. S. GARG
These two appeals are directed against the common impugned
order dated 29.06.2012 passed by the Commissioner of C. Ex.,
Service Tax, Chandigarh whereby the Ld. Commissioner has confirmed
the demand of Service Tax of Rs. 18,11,691/- under Section 73 of the
2 ST/2897/2012
Finance Act, 1994 alongwith interest under Section 75 of the Finance
Act, 1994 by invoking the extended period of limitation. The
Commissioner dropped the penalties under Section 76, 77 and 78 of
the Act by giving the benefit of Section 80.
1.1 Aggrieved by the dropping of penalty, the Revenue has also filed
appeal No. ST/3368/2012 and in the Revenue's Appeal, the assessee
has filed the cross objection.
1.2 Since, both the appeals are arising out of same impugned order,
therefore, both are taken up together for discussion and disposal.
2. First we take up the Assessee's appeal, the brief facts of the
present case are that the appellant is an authorised dealer of motor
vehicles of automobile manufacturers such as Maruti and Tata and
their relationship are governed by a dealership agreement which is on
record of the appeal paper book. The Appellant purchases vehicles
from manufacturers and sells them to retail customers. The Appellant
also maintains a service station for servicing, repairing etc. of motor
vehicles supplied by them during the warranty period and while
providing service, the Appellant has also been utilizing certain spares
and parts and recovers service tax on labour charges and recovers the
amount relating to spares used during the repair from the
manufacturer of motor vehicles.
2.2 The Audit of the appellant was conducted by the department for
the period 2005-06 to 2009-10, it was noticed that they had received
various incentives/commissions on account of insurance, sales of cars,
achieving the sales target, etc. from various banks/insurance
companies/financial institutions and other manufacturers but had not
paid service tax on full amount of incentives/commissions so received.
3 ST/2897/2012
2.3 Accordingly, a show cause notice dated 18.10.2010 was issued
to the appellant proposing recovery of service tax amounting to
Rs.1,37,07,615/- alongwith interest for the period 2005-06 to 2009-
10 under proviso to Section 73 (1) of the Act by invoking the
extended period of limitation. Penal action under Sections 77 and 78
of the Act were also proposed. Another show cause notice dated
17.10.2011 was also issued to the appellant proposing recovery of
service tax amounting to Rs.1,80,257/- alongwith interest, on amount
of Rs.17,50,067/- received as commission/incentive from the
insurance companies on account of providing insurance business to
these insurance companies for the period 01.04.2010 to 31.03.2011.
Penal action under Sections 76, 77 and 78 of the Act were also
proposed.
2.4 After following due process, the Ld. Commissioner vide
impugned order dated 29.06.2012 confirmed the demand of
Rs.49,73,964/- under Section 73 of the Finance Act and appropriated
the amount of Rs.31,62,273/- already deposited by the appellant
alongwith interest of Rs.3,79,029/- against the said demand. The
demand of service tax amounting to Rs.18,11,691/- alongwith interest
under Section 75 of the Finance Act was confirmed as recoverable.
2.5 Further, the penalty proposed under Section 76, 77 and 78 of
the Finance Act, 1994 was dropped in view of the provisions of Section
80 of the Act. Against which the department has filed Appeal No.
ST/3368/2012.
3. Heard both the parties and perused the material on records.
4. Ld. Counsel for the appellant submits that the impugned order is
not sustainable in law as the same has not been passed without
properly appreciating the facts and law and the binding judicial
4 ST/2897/2012
precedents. She further submits that in the impugned show cause
notice, no specific clause of Section 65(19) was mentioned by the
adjudicating authority while proposing the said demand as well as
while confirming the demand. She relied upon the following decisions
wherein it has been held that specific clause of Business Auxiliary
Service is required to be mentioned in the show cause
notice/adjudication order:-
Jagjeet Singh Parwana vs. Commissioner of Central
Excise and Service Tax, Chandigarh-II 2023 (8) TMI
407 - CESTAT CHANDIGARH
Confederation Of Indian Industry Versus Commissioner
of Central Excise & Service Tax, Chandigarh-1 2023 (7)
TMI 57 - CESTAT CHANDIGARH
Syniverse Mobile Solutions Pvt Ltd., (Earlier
Transcibernet India Pvt Ltd.) vs. Commissioner of
Customs, Central Excise & Service Tax, Hyderabad - IV
Service Tax Appeal No. 1319 of 2010, order dated
31.05.2023.
Balaji Enterprises Versus Commissioner of Central
Excise and Service Tax, Jaipur-l 2020 (33) G.S.T.L. 97
(Tri. - Del.)
She further submits that the impugned order itself has failed to
specify the specific clause of the provision in which the demand has
been confirmed and therefore, the impugned order is liable to be set
aside.
4.1 With regard to demand of service tax on spares and parts, the
Ld. Counsel for the appellant submits that the price of spares and
parts are not includible in the assessable value of services which are
5 ST/2897/2012
rendered by the appellant. Ld. Counsel referred to some of the
documents showing that the services and spares are charged
separately from the manufacturer for the warranty provided by the
manufacturer to the customers. She further submits that the value of
services is separately shown in the bill and service tax was paid
thereon, and the value of spare parts were separately shown in the
same bill and VAT/sale tax was paid on this component because this
part of the transaction was considered to be sale of goods liable for
payment of VAT/sales tax and service tax is not leviable on supply of
such parts.
4.2 Ld. Counsel relied upon the department Circular No.
699/15/2003-CX dated 05.03.2003, wherein it is specifically clarified
that sale of parts, accessories and consumables is not includible in the
value of taxable services provided value of such consumables is shown
separately. She also relied on the Circular No. 96/7/2007-S.T., dated
23.8.2007, which has specifically clarified that service tax, is not
leviable on a transaction treated as sale of goods and subjected to
levy of Sales Tax/VAT. In support of her submission, she relied upon
the following decisions:-
Commissioner of service tax-v, Mumbai v. UFO Moviez
India Itd. 2022 (7) TMI 1064-Supreme Court
ABT Ltd. vs. CCE, Coimbatore, Chandra Automobile India
Pvt. Ltd. And Sree Saradhambal Automobiles P. Ltd 2018
(5) TMI 716 - CESTAT CHENNAI
T.A.F.E. Access Ltd. vs. Commissioner of GST & Central
Excise, Coimbatore 2023 (5) TMI 1154- CESTAT CHENNAI
6 ST/2897/2012
Alaguindiran Auto Pvt. Ltd. vs. The Commissioner of G.S.T
& Central Excise, Coimbatore Commissionerate 2018 (11)
TMI 1469 - CESTAT CHENNAI
4.3 She also submits that the Appellant is entitled to avail the
benefit of Notification No. 12/2003 dated 20.06.2003 and not liable to
pay Service tax on spares and parts. The conditions for availing
benefit under the said Notification stands satisfied by the Appellant as
it has evidently shown the value of goods supplied separately in the
credit notes/invoices and no credit on the duty paid by the Appellant
has been availed and the same is undisputed by the department.
4.4 She further submits that the show cause notice does not
mention any allegations in respect of amount received under the head
Authorised service stations whereas the impugned order upholding the
demand under a new head of 'Authorized Service Station' is clearly
beyond the scope of show cause notice and violative of principles of
natural justice and the demand to that extent is liable to be set-aside.
4.5 She further submits that another demand has been confirmed
on the amount of incentive received from the Atlantic for buying
minimum quantity of goods from them whereas such receipt of
incentive/trade discount is not towards provision of any service at all
which is also evident from the agreement dated 01.10.2009.
Therefore, the Ld. Counsel submits that the demand of Service tax on
such amount under Business Auxiliary Service is clearly not
sustainable.
4.6 She further submits that the Tribunal has consistently held that
the demand of service tax is not sustainable on incentive or trade
discount received on buying minimum quantity of goods as it does not
7 ST/2897/2012
pertain to any service provided. In support of this submission, she
relied upon the following decisions:-
D.D. Motors vs. The Commissioner of Central Excise 2018
(11) TMI 1763- CESTAT NEW DELHI
Rohan Motors Limited vs. Commissioner of Central
Excise, Dehradun 2020 (12) TMI 1014 - CESTAT New
Delhi
BM Autolink vs. C.C.E. -Kutch (GANDHIDHAM) 2022 (12)
TMI 12 - CESTAT AHMEDABAD
My Car Pvt. Ltd. vs. Commissioner of Central Excise,
Kanpur reported in 2015 (40) S.T.R. 1018 (Tri. - Del.)
Commissioner of Service Tax, Mumbai - I vs. Sai Service
Station Ltd. reported in 2014 (35) S.T.R. 625 (Tri. -
Mumbai)
Sharyu Motors vs. Commissioner of Service Tax, Mumbai
reported in 2016 (43) S.T.R. 158 (Tri. - Mumbai)
4.7 She further submits that no service tax is leviable under BAS on
amount received on account of colour difference charges of vehicles
sold because the said amount is not a consideration for any service,
let alone BAS. She also referred to Chartered Accountant certificate
along with the ledger evidencing the value pertaining to colour
difference charges which is enclosed with the appeal paper book.
4.8 She further submits that in the appellant's own case, for the
previous period, the Ld. Commissioner (Appeals) vide order dated
10.09.2010 has held that demand of Service tax is not sustainable on
the amount received on account of colour difference as there is no
provision of service.
8 ST/2897/2012
4.9 Further, she submits that no service tax is leviable on rent
received for providing table space to banking and financial institutions
because the amount received was for providing table space to banks
and financial institutions who were financing vehicles and not for any
business auxiliary services. No activity was undertaken to promote the
business of banks and financial institutions and therefore, it cannot be
considered as promotion of business of person to whom the space has
been provided. For this submission, she relied upon the following
decisions:-
Coronation Motors vs. C.C.E. & S.T. -Rajkot 2018 (5) TMI
1525 - CESTAT Ahmedabad
Rohan Motors v. CCE, Delhi-ll 2019 (2) TMI 490 CESTAT
New Delhi.
Pagariya Auto Center vs. Commissioner of C. Ex.,
Aurangabad 2014 (33) S.T.R. 506 (Tri. -LB)
4.10 As far as invoking the extended period of limitation, Ld. Counsel
submits that the extended period of limitation cannot be invoked as
there was no wilful suppression of any fact relating to the activities
carried on by the Appellant and the Appellant was made subject to
regular audit by the department from time to time and thus the
department was very well aware about the activities of the Appellant.
Moreover, the demand was raised on the basis of the audit objections.
4.11 Further, the issue involves interpretation of the provisions, she
also submits that when the demand itself is not sustainable, the
demand of interest is liable to be set-aside.
5. On the other hand, the Ld. DR reiterated the findings in the
impugned order.
9 ST/2897/2012
6. The Department has also filed Service Tax Appeal No. 3368 of
2012 against the same impugned order passed by the Ld.
Commissioner dropping the penalty under Section 76, 77 and 78 of
the Finance Act, 1994 by invoking the provision of Section 80 of the
Finance Act, 1994.
7. Ld. DR for the Department submitted that the order for dropping
the penalty under Section 76, 77 and 78 is bad in law because the Ld.
Commissioner has confirmed the demand of the Respondent for the
extended period alongwith interest by invoking the provisions of the proviso of Section 73(1) of the Finance Act but refrained from imposing penalty against the respondent under Section 76, 77 and 78 of the Act as proposed in the show cause notice. 7.1 He further submits that the Respondent has suppressed the material facts from the department regarding the receipt of various commissions/incentives and the same were detected during the course of audit. He further submits that when the demand is confirmed by invoking extended period, then in that case imposition of equal penalty under Section 78 is mandatorily required and therefore, dropping the penalty in the instant case is bad in law. 7.2 He further submits that the respondent plea of being under the bonafide belief that no service tax was payable on the charges received by them under various heads, is untenable. In support of his submission, he relied upon the following decisions:-
Hon'ble High Court of Andhra Pradesh in the case of Commissioner of Customs and Central Excise vs. Indian Institute of Chemical Technology reported as 2012 (26) STR 97 (A.P.) 10 ST/2897/2012 UOI Vs Dharmendera Textiles processors 306 ITR 277(SC) Union of India versus Rajasthan Spinning & Weaving Mills [2009 (238) E.LT. 3 (S.C.)] Mett Macdonald Ltd. Vs. C.C.E., Jaipur reported in 2006 (2) S.T.R. 524 (Tri.-Del.) Mallur Siddeswara Spinning Mills (P) Ltd. Vs. CCE, Coimbatore reported in 2004 (166) EL. T 154 (S. C.) Aircell Digilink India Ltd. vs. Commissioner of Central Excise [2006 (3) S.T R. 386 (Tri.- Del.) Andhra Pradesh State Electricity Board Vs Collector Of Central Excise, Hyderabad [1984 (16) E.LT. 579 (Tribunal) Hon'ble High Court of Delhi in the case of Bajaj Travels Ltd. vs Commissioner of Service Tax reported as 2012 (025) STR 0417 (Del.)
8. On the other hand, the Ld. Counsel for the assessee-respondent has justified the dropping of the penalty under Section 80 of the Finance Act, 1994 by Ld. Commissioner on the ground that the demand of service tax amounting to Rs. 28,90,229/- has been deposited alongwith interest by the assessee before issuance of the show cause notice, and therefore, the Ld. Commissioner in the impugned order held that the failure to pay service tax by the assessee was on account of bonafide mistake, considering the complexities of the transactions and no intention to evade payment of service tax can be alleged against the assessee-respondent. 8.1 Further, as regards the imposition of penalty under Section 76, 77 and 78 of the Act on demand of service tax amounting to Rs.
11 ST/2897/2012 18,11,691/-, the Ld. Counsel for the assessee-respondent submits that when the demand of service tax is itself not sustainable, the penalty cannot be imposed.
9. After considering the submissions of both the parties and perusal of material on record, we find that neither in the show cause notices, nor in the impugned order, the Ld. Commissioner has mentioned any specific clause of Section 65 (19) of Business Auxiliary Service (BAS) under which service tax demand is sought to be made. We also find that the Tribunal has consistently taken the view in the decisions cited (supra) that specific clause of 'Business Auxiliary Service' is required to be mentioned and if not mentioned, the entire demand is liable to be set-aside.
In this regard, we may refer to the decision of the Tribunal in the case of Syniverse Mobile Solutions Pvt. Ltd. vs. Commissioner of Customs, Central Excise & Service Tax, Hyderabad-IV vide Final Order No. A/30152/2023 dated 31.05.2023 wherein the Tribunal in Paras 11 and 12 has observed as under:-
11. Coming to the very first preliminary objection raised by the Appellant that the Show Cause Notice has failed to correctly specify the clause under which the Appellant services will fall, on perusal of the Show Cause Notice it is seen that the entire portion of Section 65(19) pertaining to Business Auxiliary Services has been extracted at Para 2 of the Show Cause Notice without any reference whatsoever as to under which clause of the Section 65(19) the services referred by the Appellant would fall. On this issue it is seen that Tribunals have been consistently holding that it is essential for the Show Cause Notice issuing authority to clearly indicate the sub-clause under which the service tax in question would fall.
12. In the case of CCE, Goa Vs Swapnil Asnodkar [2018 (10) GSTL 479 (Tri-Mum)] the Tribunal has held as under:
4. We have carefully considered the submission made by both sides.
We find that though in the SCN the respondent was made liable to pay service tax but as rightly held by the adjudicating authority, no specific clause of Section 65(19) defining "Business Auxiliary service" has been shown to be applicable to levy service tax. It is 12 ST/2897/2012 not appearing from the show cause notice as to what goods or services the respondent has promoted or helped to promote. The Appellate Commissioner also on the same ground has held that the demand being vague is not enforceable against the respondent. We do not find any reason to infer any different view than expressed by the lower authorities as without specifying the activity and the nature of service of the respondent he cannot be taxed. Further out of the seven clauses under Section 65(19) no clause has been pointed out under which the respondent is liable for service tax.[emphasis supplied] In the case of United Telecom Ltd., Vs CST, Hyderabad [2011 (22) STR 571(Tri-Ban)] the Bench has held as follows:
2.3 In the impugned order, the Commissioner (Appeals) observed that the Original Authority himself was not clear under which category of service the activity of the appellants was liable Service tax. The Commissioner (Appeals) reproduced Section 65A(2), the statutory provision for classification of a taxable service prima facie classifiable under two or more sub-clauses of Clause 105 of Section 65 and observed asfollows:-
"The lower authority has obviously not followed principles detailed supra and clearly erred in holding that the services rendered by the appellants are classifiable under both "Business Auxiliary Service"
as well as "Business Support Service". Having reproduced the findings of the Commissioner in the impugned order and having observed that "I am in agreement with the aforesaid findings of the Commissioner", there was no need to come to such a weird conclusion of classifying the service under more than one head."[emphasis supplied] In the recent decision of CESTAT, Delhi in the case of Balaji Enterprises Vs CCE and ST, Jaipur [2020(33) GSTL 97 (Tri-Del)] the Bench has considered in the case of Collector Vs Pradyumna Steel Ltd., [1996 (18) ELT 441 (SC)] which is cited by the Learned AR in that case and the Hon'ble Bench has held as under:
28. Likewise, the decision of the Supreme Court in Collector of Central Excise, Calcutta v. Pradyumna Steel Ltd. [1996 (82) E.L.T. 441 (S.C.)] would also not come to the aid of the Department. This decision holds that mere mention of a wrong provision of law, when power that has been exercised is available under a different provision, is by itself not sufficient to invalidate the exercise of that power.
29. The impugned order, therefore, can be set aside only on this ground as the show cause notice does not mention which service out of the seven services specified in Section 65(19) of the Act was undertaken by the Appellant.[emphasis supplied] 9.1 As regards the demand of Service Tax on spares and parts, we find from the documents placed on record at Page No. 116 to 124 of
13 ST/2897/2012 the Appeal Paper book that services and spares are charged separately from the manufacturer for the warranty period and service tax was paid on the value of services and on the value of spare parts, VAT/Sale Tax was paid as the sale of spare parts is considered to be sale of goods and liable to VAT. Therefore, in our view, the service tax is not leviable on the sale of spare parts.
In this regard, we may refer to Department Circular No. 699/15/2003-CX dated 05.03.2003 which specifically clarifies that the sale of parts, accessories and consumables are not includible in the value of taxable services provided the value of such consumables are shown separately and in the present case, we find that the assessee has shown the value of service and value of spare parts separately.
In view of this, the demand on this account is not tenable as held in various decisions relied upon by the appellant cited (supra).
In this regard, we may refer to the decision of the Tribunal in the case of ABT Ltd. cited (supra) wherein the Tribunal in Para 5 has set-aside the demand of service tax on spare parts which is extracted herein below:-
5. After considering the submissions made by both sides as well as perusal of records, we find that the service tax demand has been raised by Revenue on the cost of spare parts used while rendering the warranty as well as extended warranty service. After a perusal of some of the sample invoices raised for such work, we note that the spare parts have in fact been sold on payment of VAT. Consequently, we are of the view that the cost of spare parts cannot be included for purposes of levy of service tax. Such demand of service tax is not justified and hence are set aside."
9.2 As regards the service tax on amount of incentive received from the Atlantic Lubricants and Specialities Pvt. Ltd. for buying minimum quantity of goods, we find that such receipt of incentives/trade discount is not towards provision of any service which fact is clear
14 ST/2897/2012 from the perusal of the agreement dated 01.10.2009 entered into between the parties which is placed at Page No. 195 to 200 of the Appeal Paper Book.
9.3 Further, we also find that Atlantic Lubricants and Specialities Pvt. Ltd. has also filed undertaking dated 12.07.2012 wherein they have stated that as a general practice of industry we have advanced a sum of Rs. 17,50,000/- towards upfront margin & discount support. 9.4 Further, we also find that the decisions relied upon by the appellant cited (supra) wherein the Tribunal has held that the demand of service tax is not sustainable on incentives and trade discounts received on the buying minimum quantity of goods.
In this regard, we may refer to the decision of the Tribunal in the case of M/s D D Motors cited (supra) wherein the Tribunal in Para 6 has held as under:-
"Thus, on the question of whether the service tax is leviable on the amount of incentive received by the appellant from M/s Maruti Udyog Ltd. for achieving certain sales targets, we hold that same is not taxable under the category of the business auxiliary service as same being in the form of a trade discount received by the appellant from the supplier of vehicles."
9.5 As regards the demand of service tax under Business Auxiliary Service on the amount received on account of colour difference charges of vehicles is concerned, we find that such charges are in relation to sale of car and is related to the value of car sold and not a consideration for any service, let along BAS. To this effect, the appellant has produced the certificate of the Chartered Accountant alongwith ledger which is on record of the appeal paper book. 9.6 Further, we find that in the appellant's own case, for the previous period, vide its order dated 10.09.2010, the Ld. Commissioner (Appeals), Chandigarh set-aside the demand on this 15 ST/2897/2012 issue on the ground that there is no provisions of service involved in this case.
9.7 As far as the demand of service tax on rent received for providing table space to banking and financial institutions is concerned, we find that the amount received by the appellant is for providing space and not for promoting the business of banks/financial institutions. The provisions of space cannot be considered as promotion of business of the person to whom the space has been provided as held in various decisions relied upon by the appellant cited (supra).
In this regard, we may refer to the decision of the Tribunal in the case of Coronation Motors cited (supra) wherein the Tribunal has held in Para 7 as under:-
"We find that undisputedly the appellants have provided table space to the executives of various Banks in processing loan documents at their Authorised Service Center, for which they received commission/charges from the respective banks. The issue of leviability of Service Tax on such commission/charges for providing table space is no more res-Integra being settled by the Larger Bench of this Tribunal, in the case of Pagariya Auto Center's case(Supra). The larger Bench of this Tribunal observed as followed.
"11. The earliest of the decisions referred before us is the decision in Silicon Honda. This is a judgment of a ld. single Member. We notice that in this appeal, the assessee's challenge to the adjudication order was on the basis that the conclusion that the assessee had provided BAS was erroneous since Revenue had concluded that the assessee had provided BAS by acting as a commission agent to a bank/financial institution and table space was also provided to representatives of such bank/financial institution. The appeal was allowed by this Tribunal with the observation that the adjudication order had failed to refer to any evidence as to financial institutions paying commission to the assessee for providing loan to their customers, who are secured through the efforts of the assessee and there was no record of the assessee's efforts in having provided any such service to the financial institutions. It was held that mere presence of the financial institutions in the assessee's premises and receiving a consideration for lease of table space, would not amount to BAS. This judgment is therefore not an authority for a principle that all transactions between an automobile dealer and bank/financial institutions, involving presence of such financial institutions in the premise of the dealer, would amount to BAS. There can be no dispute that mere providing of a table space in an assessee premises would not per se amount to BAS.
16 ST/2897/2012
21. Where mere space is provided along with furniture for facilitating accommodation of representatives of financial institutions in the premises of an automobile dealer and consideration is received for that singular activity, such consideration may perhaps constitute a rent for the provision of space and associated amenities. Such restricted relationship/transaction may not amount to BAS. If on the other hand, the transactional documents and other evidence on record indicates a substantial activity falling within the contours of any of the integers of the definition of BAS, spelt out in Section 65(19), then it would be legitimate to conclude that BAS is provided."
10. In view of our discussion above, we are of the considered view that the impugned order confirming the demand amounting to Rs. 18,11,691/- under Section 73 of the Finance Act, 1994 is not sustainable in law, and therefore, we set-aside the same. Once, we set-aside the demand, the question of interest and penalty does not arise. Consequently, the Assessee's Appeal is allowed and the Department's Appeal is dismissed. Accordingly, Cross Objection filed by the assessee is also disposed off.
(Pronounced on 20.12.2023) (S. S. GARG) MEMBER (JUDICIAL) (P. ANJANI KUMAR) MEMBER (TECHNICAL) G.Y.