2007 (5) TMI 83 - AT - Service Tax

Valuation(Service tax) - Revenue contended that authorize dealer draws commission from manufacturer which obviously includes certain cost in terms of three free services - Held that revenue contention correct and directed applicants for pre-deposit a sum of Rs. 1,00,000/-

Summary

Issues:
1. Leviability of Service Tax on free services provided during the warranty period.

Analysis:
The judgment deals with the issue of the leviability of Service Tax on free services provided during the warranty period. The Commissioner (Appeals) held that the warranty labor charges, fixed by Maruti Udyog and forming a part of the dealer's commission, are not truly free services. The Commissioner referred to Section 67 of the Finance Act, 1994, which defines the value of taxable services as the gross amount charged by the service provider. The Commissioner concluded that since the appellant had charged a certain amount for the services, the contention that the value of services was zero and hence the service tax should be zero was not sustainable. Therefore, the demand for service tax on these free services was deemed sustainable.

The applicant argued that a CBEC Circular from 2003 states that if the value of a taxable service is zero, then the tax should also be zero. However, the learned DR pointed out the dealership agreement between Maruti Udyog Limited and the appellant company, which indicated that the cost of free services during the warranty period was included in the agreement. The agreement specified that the Selling Dealer must pay for any free services provided by another dealer promptly. The Tribunal noted that the dealership agreement highlighted the connection between the manufacturer and the dealer regarding free services during the warranty period.

Furthermore, the applicant referred to a division Bench judgment in AVG Motors Ltd. v. CCE, Kottayam, which granted a stay in a similar case. However, the Tribunal clarified that the AVG Motors Limited judgment was only a stay order and not a final decision on the matter. Additionally, the Tribunal emphasized that the dealership agreement, which demonstrated the relationship between the manufacturer and the dealer regarding free services, was not considered in the AVG Motors Limited judgment.

In conclusion, the Tribunal directed the applicants to pre-deposit a specified amount within a given timeframe, failing which both appeals would be dismissed. The remaining tax and penalty amounts would be waived upon the deposit of the specified sum until the matter was finally heard. The compliance reporting date was set for a specific future date.