2012 (8) TMI 535 - AT - Service Tax

Extended period of limitation - Whether incentive/commission/income received from various finance Co. and Banks would be chargeable to Service Tax as Business Auxiliary service Held that - Information regarding commission received and also about payments received from the manufacturer was not disclosed in the service tax returns. This cannot considered as suppression with intent to evade tax, because the Assessee had a bona fide belief that they were not liable to pay tax on the amount received by them out of commission received by Maruti Udyog Ltd. on which Maruti Udyog Ltd. had paid Service tax - not a fit case to invoke the extended period alleging suppression - Appeal fails on account of time bar and also on merits.

Issues Involved:
1. Appeal against Order-in-Appeal No. 267 (HKS) CE JPR-II/2006 dated 10-4-2006.
2. Appeal against Order-in-Original 135/07-Commissioner (S.T.) dated 25-10-2007.
3. Review of the Order dated 25-11-2005 by the Joint Commissioner.
4. Whether service tax is applicable on commission received by dealers of motor vehicles from finance companies.
5. Applicability of extended period for invoking Section 73(1) of the Finance Act, 1944.
6. Allegations of suppression of information and evasion of service tax.

Detailed Analysis:

1. The first appeal originated from Order-in-Appeal No. 267 (HKS) CE JPR-II/2006 dated 10-4-2006. The Joint Commissioner confirmed a demand of Rs. 2,43,406 on commission received by the assessee from finance companies. However, the Commissioner (Appeal) set aside this order, stating that there was no evidence to support the claim that the commission received was chargeable to service tax under 'Business Auxiliary Service' category. The appeal was filed by the revenue against this decision.

2. The second appeal was against Order-in-Original 135/07-Commissioner (S.T.) dated 25-10-2007. The Commissioner confirmed a demand of Rs. 1,66,885 from the assessee on the amount received from Maruti Finance Ltd. The Tribunal noted that the original order was set aside earlier, making the review of the order non-sustainable. The matter was subject to Appeal No. 262/2006 filed by the department.

3. The main issue revolved around whether service tax was applicable on the commission received by dealers of motor vehicles from finance companies. The Tribunal referred to a previous judgment in Roshan Motors Ltd. v. C.C.E., Meerut, which had already addressed this issue.

4. The argument regarding the extended period under Section 73(1) of the Finance Act, 1944 was raised. The respondent contended that there was no suppression of information as all records were produced to the audit party promptly. The Tribunal considered this argument in light of the relevant provisions.

5. The Tribunal also considered the contention that the commission received by the assessee was part of the commission received by Maruti Udyog Ltd., on which service tax had already been paid. This argument was supported by a previous decision in Popular Vehicles and Services Ltd. v. C.C.E. Kochi.

6. The issue of suppression of information and evasion of service tax was extensively discussed. The revenue argued that there was suppression as the commission received was not disclosed in the ST-3 return. However, the Tribunal found that the assessee had a bona fide belief that they were not liable to pay tax on the commission received, leading to the conclusion that the appeal failed both on time bar and merits.

7. Ultimately, the Tribunal disposed of Appeal No. 262/2006 filed by the Revenue and the cross-objection filed by the Respondent accordingly. Appeal No. 46/2008 filed by M/s. Ajmer Automobiles was also disposed of in the same terms.

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