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TMI Blog2016 (2) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... proper management supervision and coordination of various aspects relating to fulfillment of its responsibilities as per the said agreement. Therefore the services rendered clearly fell under the scope of managing distribution and logistics. None of the limbs of BAS covers the impunged activity - the services rendered by the appellant were clearly, unambiguously and fully covered within the scope of managing distribution and logistics and therefore the impugned services were classifiable under BSS and liable to service tax with effect from 1.5.06. Extended period of limitation - the facts relating to the value of services rendered during the period January 2008 and September 2008 were not available with Revenue and the appellant deliberately did not provide them in a timely manner in spite of repeated and numerous reminders sent over a period of several months. - Once suppression is established as it has been in the present case , Revenue gets a period of 5 years to issue show cause notice as per the proviso to Section 73(1) ibid. Demand pertaining to the period 1.5.06 to 31.12.07 along with interest and penalty under Section 78 is upheld. - Decided against the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of second show cause notice, it was a subsequent show cause notice for subsequent period and therefore as per the judgment of Supreme Court in Nizam Sugar Factory, the extended period was in any case not invokable. (v) It was under bona fide belief that services rendered were not taxable under BAS or BSS. (vi) Penalty under Section 76 should not be imposed if penalty under Section 78 is sustained and option of reduced penalty under Section 78 should also be extended it was not expressly extended by the lower adjudicating authorities. 3. Ld. A.R. for Revenue on other hand contended that services were rendered in relation to sale of goods and therefore were covered under BAS upto 30.4.2006 and are even more specifically covered under BSS with effect from 1,4.2006. It is not the case of supply of manpower but a case of managing distribution and logistics in relation to transporting motor vehicles to the service recpients depot or dealer's premises. The extended period is invokable as there was no ambiguity or scope for confusion regarding taxability of the services rendered. As regards the second show cause notice, ld. A.R. stated that extended period had been invoked b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... despatched to our depot immediately. 6...... 7. You will be paid 75% of transportation charges as an advance for each vehicle. This amount will be deducted from your final bill submitted you every month. 8. You will prepare delivery challan in accordance with our Invoice Cum Challan giving detailed description of the consignment, Engine Number, Chassis Number and Quantity (in case of component / took kits etc.) You will provide good drivers as and when vehicles are released to you and ensure that the vehicles are delivered to our depot in safe condition. In case of regular and persistent defaults on this court, we may reduce your share of business. 9. Your authorised driver/ convoy leader will deliver the documents given alongwith our vehicles to the concerned Depot in charge at receiving end. For any mission documents, you will be held responsible. 10. You will be responsible for the safe transportation of the Light Commercial vehicles and Multi Utility vehicles, parts and components thereof. You will ensure that the Light Commercial vehicles and Multi Utility vehicles delivered at the depots are in tact. Any damages/ shortages of parts and oil, if reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... despatch note will be handed over to your authorised person at the time of taking delivery at our Gate. 20. At the end of every month, you will submit a statement giving the following details: (i) Delivery challan Number and Date (ii) Correspondence Light Commercial vehicles and Multi Utility vehicles serial Number and Model. (iii) Date of collection (iv) Date of Delivery at the Depot. 21. Addition/ deletion/ amendment of any of the Terms and Conditions in this contract may be done by us as and when necessary. Thanking you, Yours faithfully, For BAJAJ TEMPO LIMITED Sd/- RAVINDER SINGH VICE PRESIDENT (SALES MKTG.) It is seen from the aforesaid agreement that the appellant was not providing skilled drivers to the service recipient. Indeed, the appellant took the responsibility for transportation of the vehicles which inter alia involved (i) appointing an authorized representative to take delivery of the vehicles from the factory gate; (ii) arranging and employing skilled drivers to drive them to their destinations ensuring that the vehicles were driven safely and immediately to their respective destinations; (iv) prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, input means all goods or services intended for use by the client; (v) production or processing of goods for, or, on behalf of, the client; (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi) such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision. We have already analysed the details of scope of the services rendered by the appellant. We find that none of the limbs of BAS as listed above encompass the impugned services inasmuch as the services rendered were neither in relation to promotion or marketing or sale of goods/service belonging to /provided by client nor did they constitute customer care service provided on behalf of the client. They were also not for procurement of goods or services which were inputs for its clients. Thus we hold that the demand pertaining to the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided by a provider of service to the service recipient in respect of goods upto the place of removal would not be liable to service tax, notwithstanding the fact that the service recipient may be eligible for taking cenvat credit of service tax paid on such services if otherwise eligible to do so. We must point out that bona fide belief is not equivalent to some hallucinatory or self-serving belief. It is a belief of a reasonable person operating in an appropriate environment. As we have demonstrated, the services rendered by the appellant when juxtaposed with the definition of BSS would not leave any scope for a reasonable person operating is an appropriate environment to objectively and sincerely entertain a belief that the definition of BSS did not cover the impugned services. The appellant had not taken any service tax registration nor did it file ST -3 returns of the services rendered. In the matrix of these facts and circumstances, the extended period is clearly invokable and none of the judgments cited by the appellant in this regard came to its rescue. 8. We however notice that the primary adjudicating authority vide impugned order dated 26.2.09 imposed penalties under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of the appellant manifestly shows suppression of facts on its part as it did not provide the requisite information required for computing service tax liability for issuing show cause notice in spite of numerous reminders over a period of several months. Therefore, the judgment of Supreme Court in Nizam Sugar Factory (supra) is not applicable in the present case as that judgment was in relation to central excise duty involving manufacture of sugar in a factory where identical issue and facts were in the knowledge of Revenue for issuance of the subsequent show cause notice while in the present case the facts relating to the value of services rendered during the period January 2008 and September 2008 were not available with Revenue and the appellant deliberately did not provide them in a timely manner in spite of repeated and numerous reminders sent over a period of several months. Thus the ratio of the judgment in the case of Nizam Sugar Factory (supra) is not applicable here. Once suppression is established as it has been in the present case , Revenue gets a period of 5 years to issue show cause notice as per the proviso to Section 73(1) ibid. Therefore the contention of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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