Commissioner of GST and Central Excise Chennai Versus M/s. Vivek Ltd.
Service Tax
2018 (11) TMI 1220 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 3-9-2018
ST/CO/2 & 3/2012 and ST/537 and 538/2011 – Final Order Nos. 42350-42351/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri S. Govindarajan, AC (AR) for the Appellant
Shri M. Kannan, Advocate for the Respondent
ORDER
Per Bench
The issue arises for consideration in both these appeals being the same, they were heard together and are disposed by this common order.
2. The respondents are engaged in the business of trading in consumer durables like TV, Fridge, Air-conditioning etc. In such activity, they also undertake warranty services and annual maintenance service. Based on specific intelligence that the respondents are providing taxable services under the category of Business Auxiliary Services and have not obtained registration and not
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d the grounds filed in the appeal. He submitted that the respondents have tie-up with banks / financial institutions and customers who approach to buy consumer durables are able to avail loan from such banks / financial institutions. By this activity they were promoting the business of such financial institutions. The respondents were receiving commission / incentive from such financial institutions. The respondents have not paid the service tax on the incentives received from them and have suppressed the fact with intent to evade the payment of the service tax. He relied upon the decision of the Larger Bench of the Tribunal in the case of Pagariya Auto Center Vs. Commissioner of Central Excise, Aurangabad – 2014 (33) STR 506 (Tri. LB) and argued that when commission / incentive is received by the dealer from the banks / financial institutions for promotion of their business, the activity would fall under BAS.
4. The ld. counsel Shri M. Kannan appeared on behalf of the respondent. He
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of the tribunal in La Freightlift P. Ltd. Vs. Commissioner of Service Tax, Chennai – 009 (1) STR 513 (Tri. Chen.). The ld. counsel also argued to set aside the penalties. He submitted that the issue was interpretational one and that it had travelled upto the Larger Bench. In fact, the Commissioner (Appeals) had set aside the demand observing that the activity does not fall under BAS. Being interpretational issue, the penalties may be set aside by invoking Section 80 of the Finance Act, 1994.
5. Heard both sides.
6. The original authority had confirmed the demand holding that the activity would fall under BAS. In Pagariya Auto Center (supra), the Larger Bench had observed that the court has to look into facts / documents to analyse whether the said activity falls within BAS. The Tribunal in the case of Commissioner of Central Excise Vs. Vasanth & Co. – 2018 (7) TMI 1220 – CESTAT Chennai had remanded the matter directing to scrutinize the documents so as to analyze whether the case wou
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