2017 (10) TMI 136 - AT - Service Tax

Commission, incentives and profit/ overriding commission - taxability - appellant is authorised dealer of Mahindra and Mahindra Ltd. and engaged in purchase and sale of vehicles - whether the activities would be considered as provision of BAS under Section 65(19) of Finance Act or not? - Clearing and forwarding agent service - Held that - all the receipts received by the appellant herein by whatever name called-commission, incentive, overriding commission are received by way of trade discount, are by way of dealership arrangement on principal to principal basis - SCN is unsustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Service Tax liability on commission, incentives, and profit received by the appellant-assessee from Mahindra and Mahindra Ltd. for sale of vehicles.

Analysis:
The appellant, an authorized dealer of Mahindra and Mahindra Ltd., received commission, incentives, and profit from the manufacturer for promoting sales to the Government. The revenue alleged non-payment of Service Tax on these receipts and proposed a demand of ?21,49,481. The appellant contended that the incentives and commissions received were trade discounts and not Business Auxiliary Services (BAS). Citing precedents like Sharyu Motors and My Car Pvt. Ltd., the appellant argued that the receipts were on a principal-to-principal basis. The appellant also highlighted the nature of the dealership arrangement and profit-sharing with Automart India, emphasizing that no consideration was received from the manufacturer for buying and selling old vehicles. The appellant further relied on judgments like CCE Vs Krishna Mobiles and CCE Vs Amitdeep Motors to support their case.

The Show Cause Notice (SCN) was adjudicated, confirming the demand and imposing penalties under various sections. The appellant appealed to the Commissioner (Appeals), who upheld the original order. The appellant's counsel argued that the issue had been settled in previous tribunal and high court decisions, emphasizing that the receipts were trade discounts and not BAS. The revenue authority relied on the impugned order.

After considering the arguments, the tribunal found that all receipts received by the appellant were trade discounts under a dealership arrangement on a principal-to-principal basis. Relying on previous rulings, the tribunal held that the show cause notice was not sustainable. Consequently, the appeal was allowed, and the impugned order was set aside, granting the appellant consequential benefits as per the law.