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TMI Blog2014 (1) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... Leyland - Thus, from the agreement it is evident that the appellant undertakes not only sale of the goods but also undertakes certain services such as sales promotion, after-sale service, advertising, etc. Business Auxiliary Service is defined in Section 65(19) of the Finance Act, 1994 and includes promotion or marketing or sale of goods produced or provided by or belonging to the client or provision of service on behalf of the client. Thus, the activities undertaken by the appellant prima facie comes under the category of “Business Auxiliary Services” and they are liable to discharge Service Tax on the consideration received in respect of this activity - prima facie appellant has not made out any case for complete waiver of the pre-deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to discharge any Service Tax liability. The balance sheet of the appellants were compared with the ST-3 returns filed by them for the years 2007-08 to 2009-10. It was seen that the commission amounts received shown in the balance sheets was more than the taxable value shown in the ST-3 returns filed with the department. Statement of the Branch Manager and Authorised Signatory of the appellant was recorded wherein he inter alia stated that they have a centralised billing of sales of Leyland vehicles in the State of Maharashtra at Kurla, Mumbai and their office in Mumbai accounts for the sale of vehicles. Thereafter, the commission received from the Mumbai office is distributed to all the branches by way of credit notes which is refle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll these purchase and sales are accounted at its Kurla, Mumbai office and the trading profit generated from this trading activity is shared among the various branches of the appellant company based on the number of vehicles sold by each branch in each month. Thus the so called commission received is nothing but a trading profit/margin and is not in respect of providing any service per se. The learned counsel for the appellant also submits that they have not suppressed any facts from the Department and they were under the bona fide belief that the trading profit earned by them is not liable to Service Tax and, therefore, invoking of the extended period of time is incorrect and cannot be upheld. Accordingly, she pleads for grant of stay. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas specified in the agreement, the appellant is also required to undertake sales promotion activities for vehicles of M/s. Ashok Leyland Ltd. by way of advertisements and other promotional measures. They are also required to undertake after-sale services in respect of Ashok Leyland vehicles sold by them. The dealer is also required to attend to customer complaints with view to protecting the goodwill of Ashok Leyland. These terms and conditions are specifically stated in Article 15 of the agreements dealing with sales and service which specifically provides as follows : a. Sales. The Main Dealer shall canvas in the said Territory and promote sales of the said products and shall for that purpose employ at his expense the salesmen a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 65(19) of the Finance Act, 1994 and includes promotion or marketing or sale of goods produced or provided by or belonging to the client or provision of service on behalf of the client. Thus, the activities undertaken by the appellant prima facie comes under the category of Business Auxiliary Services and they are liable to discharge Service Tax on the consideration received in respect of this activity. No evidence has been placed before us to show that the appellant has discharged Service Tax liability on this activity either at Nagpur or at Mumbai. Therefore, we are prima facie of the view that the appellant has not made out any case for grant of complete waiver from pre-deposit of the dues adjudged against them. 5.3 As reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be the slightest indication of a likelihood of prejudice to the interest of public revenue; (4) While dealing with the applications, the twin requirements of consideration i.e., consideration of undue hardship, and imposition of conditions to safeguard the interests of revenue must be kept in view; (5) When the Tribunal decides to grant full or partial stay, it has to impose such conditions as may be necessary to safeguard the interests of the revenue. This is an imperative requirement; and (6) An Appellate Tribunal, being a creature of the statute, cannot ignore the statutory guidance while exercising general powers or expressly conferred incidental powers. [Commissioner of Central Excise, Guntur v. Sri Chaitanya Ed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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