Custom, Excise & Service Tax Tribunal
Agr Automobiles Pvt Ltd vs Allahabad on 20 November, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
REGIONAL BENCH : ALLAHABAD
COURT No. I
APPEAL Nos. ST/70717 & 70343/2016-CU[DB]
(Arising out of Order-in-Appeal No.171-ST/APPL-ALLD/LKO/2016 dated
25/02/2016 passed by Commissioner (Appeals), Customs, Central Excise &
Service Tax, Lucknow)
Commissioner of Central Excise
& Service Tax, Allahabad &
M/s AGR Automobiles Pvt. Ltd. Appellants
Vs.
M/s AGR Automobiles Pvt. Ltd. &
Commissioner of Central Excise
& Service Tax, Allahabad Respondents
Appearance:
Shri Shiv Pratap Singh (Dy. Commr.) AR for Revenue Shri Vineet Kumar Singh (Advocate) for Assessee CORAM:
Hon'ble Mrs. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Anil G. Shakkarwar, Member (Technical) Date of Hearing : 27/09/2018 Date of Decision & Pronouncement : 20/11/2018 FINAL ORDER NOs-72673-72674 / 2018 Per: Archana Wadhwa As per facts on record, the appellant is registered with the Service Tax Department for providing services under the category of servicing of motor vehicle and Renting of Immovable Property. They were receiving 2 APPEAL Nos. ST/70717 & 70343/2016-CU[DB] certain amounts from M/s Maruti Udyog Ltd. on account of extended warranty, true value service, bank commission and insurance commission. Revenue by entertaining a view that the amount received by them on the said counts would be taxable under the category of "Business Auxiliary Services" in terms of clause (19) of Section 65 of the Finance Act, 1994, proposed to confirm the demand of duty against them. Accordingly a show cause notice dated 19/10/2012 raising service tax amounting to Rs.38,80,999/-, for the period 2007-08 to 2011-12 was issued to them, which stand culminated into the impugned order passed by the Original Adjudicating Authority. The said order of the Original Adjudicating Authority was challenged by the appellant before Commissioner (Appeals).
2. The Appellate Authority observed that the issue on merits stands decided against them by various decisions of the Tribunal. Accordingly, he upheld the confirmation of demand of service tax. However, appreciating that the appellant has already deposited an amount of Rs.18,81,782/-, he reduced the penalty under Section 78 of the Finance Act, to the balance amount of Rs.19,99,217/-. He further observed that as the appellant was regularly filing ST-3 returns there was no 3 APPEAL Nos. ST/70717 & 70343/2016-CU[DB] reason to impose any penalty under Section 77, when the penalty has already been imposed under Section 78. Accordingly, he set aside the penalties imposed under Section 77 of the Act.
3. Being aggrieved with the said order the assessee as also the Revenue has filed present two appeals, which are being disposed of by a common order as they arise out of the same impugned order of Commissioner (Appeals).
4. As regards, the appellant's appeal, we find that Commissioner (Appeals) has held as under:-
"I also find that the appellant has no valid ground to challenge the order on merit as the issues regarding the taxability of bank/finance commission, insurance commission etc. under the category of Business Auxiliary Service is no more res-integra. Such issues are already covered by the decisions of Tribunal in the cases of Chambal Motors Pvt. Ltd. (2008), TIOL- 1277, City Motors & Financial Services (2012), TIOL- 578 another case reported in 2013 TIOL-1436 and EMPEE Motors Pvt. Ltd. vs. CCE, Chandigarh vide Final Order No.ST/412/2011 (PB) dated 28.08.2011 and many others. Therefore, the appellant has no case on merit at all."
5. As is seen from the above, the issue stands decided against the assessee by various decisions of the Tribunal 4 APPEAL Nos. ST/70717 & 70343/2016-CU[DB] and referred in the above reproduced para of Commissioner (Appeals) order. However, we find that the Tribunal in the case of Chambal Motors Pvt. Ltd. has held that there was confusion of law at the inception and the assessee deserves consideration under Section 80 of the Finance Act. Similarly in the case of City Motors & Financial Services 2012 (25) S.T.R. 449 (Tri.- Del.), it was observed that the issue was not clear from doubt and was interpreted by judicial forums in different ways. In such a situation extended period cannot be invoked for raising the demand.
6. Inasmuch as in the present appeal the demand stand raised and confirmed by invoking longer period of limitation and by applying ratio of the above decision, we hold that such extended period was not available to the Revenue and accordingly demand is required to be held as barred by limitation. We, accordingly set aside the demand alongwith setting aside of penalty on the ground of limitation and allow the assessee's appeal. However, if a part of the demand falls within the limitation period, the same shall be quantified by the Original Adjudicating Authority and intimated to the assessee. 5 APPEAL Nos. ST/70717 & 70343/2016-CU[DB]
7. Inasmuch as the assessee's appeal has been allowed by setting aside the impugned Order-in-Appeal, Revenue's appeal, which is only for enhancement of penalty becomes infructuous, the same is accordingly dismissed.
8. Both the appeals are disposed of in above manner.
(Pronounced in Court on-20/11/2018) (Anil G. Shakkarwar) (Archana Wadhwa) Member (Technical) Member (Judicial) Lks