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2018 (4) TMI 908 - AT - Service TaxPre-deposit - Whether the appellant is required to make the pre-deposit of 10% of service tax demand with respect to Optional Extended Warranty Service, as held by Member (Technical) that the appellant has not made out a prima-facie case for waiver of pre-deposit? - Difference of Opinion - majority decision. Held that - the transaction entered into between the purchaser of motor vehicle and the manufacturing appellant in case of extended warranty is that the money is collected irrespective of whether the vehicle is attended or not and this is how it is different than the service for repair, reconditioning, restoration or decoration of the motor vehicle because in the case of repair, reconditioning etc. the monitory consideration is received by the service provider only after attending on the job of repair reconditioning etc - Therefore, the matter is debatable. In view of the majority decision the appellant-applicant is not required to make a pre-deposit of 10% of service tax demanded, under Section 35F of Central Excise Act, 1944 and the stay petition is allowed.
Issues Involved:
1. Optional Extended Warranty Service 2. Fleet Management Service Issue No. 1: Optional Extended Warranty Service The appellants were not paying service tax on Optional Extended Warranty Service under Motor Repair Related Service from 01.05.2011 to 30.06.2012. The appellants contended that they were merely providing assurance to the customers and not undertaking the service of repair or replacement. They argued that the actual repair work was undertaken by dealers, and the replacement parts attracted VAT. They relied on various judgments to support their claim that their activity should be considered a works contract, which was not taxable before 2012. The Revenue argued that the service provided by the appellants fell under the category of repair of motor vehicles and was taxable. The Tribunal found that the extended warranty is a mechanical and electrical breakdown warranty designed towards the cost of repairs/replacement of any specified parts covered in the said warranty. The essential character of the contract was repair and restoration during the period of extended warranty. The appellants' argument that repair is a one-time activity was rejected. The Tribunal held that the appellants had not made a prima facie case for waiver on this issue and directed them to deposit 10% of the service tax demanded on Issue No.1 within eight weeks. However, there was a difference of opinion between the Members. The Member (Judicial) opined that the service rendered by the appellant merits classification under 'Works Contract service' and therefore, the appellant is not liable to pay service tax under the category of 'Repair and Maintenance Services'. The third Member (Technical) agreed with the Member (Judicial) and held that the appellant is not required to make a pre-deposit of 10% of service tax demanded. Issue No. 2: Fleet Management Service The Revenue sought to levy service tax on the fleet management service under Business Support Service (BSS). The appellants contended that their role was to provide value-added maintenance and repair service, including periodic inspection, servicing, overhaul, and chauffeur services. They argued that the services provided by them are neither covered under the Explanation portion nor under the inclusive portion of the definition of BSS. They relied on various case laws to support their claim. The Tribunal found that the definition of "Support Service of business or commerce" does not categorize fleet management service in any of the activities itemized in the definition. The adjudicating authority had applied the expression 'Infrastructural Support Service' given in the Explanation to hold that the service provided by the appellants falls in that category. However, the Tribunal held that providing fleet management, which includes value-added maintenance repair service, is not covered in the scope of Business Support Service. The Tribunal concluded that the appellants had made a prima facie case for waiver of the service tax demanded, interest, and penalty thereon. Majority Order: In view of the majority decision, the appellant-applicant is not required to make a pre-deposit of 10% of service tax demanded under Section 35F of the Central Excise Act, 1944, and the stay petition is allowed.
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