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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 ..... them driven by skilled drivers. The primary adjudicating authority held that upto 30.4,2006 the services rendered were classifiable under Business Auxiliary Service (BAS) [Section 65((105)(19}] of the Finance Act, 1994 and with effect from 1.5.2006 the services were classifiable under Support Service for Business or Commerce (BSS) [Section 65 (104c)]. The primary adjudicating authority also held that the appellant was guilty of suppression of facts and therefore, invoked the extended period and confirmed the aforesaid demands along with interest and penalties. 2. The appellant has contended that (i) service provider does not fall under BAS or BSS. It was only providing services of skilled drivers who drove the vehicles to various destinations (depot or dealer's premises) as directed by the service recipient (M/s Force Motor Ltd.) These services can at best be possibly covered under GTA service or manpower recruitment or supply service, (ii) It was not managing any distribution or logistics, (iii) The extended period is not invokable there was no willful misstatement or suppression on its part and Revenue itself was confused whether the service was under BAS or BSS and. (iv) In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ATI 2. In addition to the above transportation rates, you are allowed to claim the actual toll taxes, road taxes, bridge taxes against submission of original receipts pertaining to the same along with the monthly transportation bill. 3. You will appoint an authorised representative to take delivery of the vehicles from our Factory gate at Pithampur. Your representative will check and ensure that the vehicle is in OK condition at the time of taking delivery. 4. You will take Light Commercial Vehicles and Multi Utility vehicles from our Factory at Pithampur and transportation by road will be arranged by you without any additional cost. Also you will take delivery of tool kits, spare wheel rim tyres & tube etc. alongwith the vehicles and arrange to deliver the same along with each vehicle to the depot. 5. You will ensure that after taking delivery, the Light Commercial vehicles and Muiti Utility vehicles with accessories tool kits etc. will be 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 deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity vehicles during the course of transportation. 18. In case of any incidence of seizure of Light Commercial vehicles and Multi Utility vehicles on account of accident or otherwise by the Competent Authorities while in transit, you will ensure that the necessary steps are initiated to get the Light Commercial vehicles and Multi Utility vehicles released, free from all encumbrances, which may prevent us from selling the same. In case of accident: a) You will obtain "Police Panchnama" and arrange for a survey and other formalities for insurance claim and submit all papers to us. b) You will make arrangement for transportation of damaged Light Commercial vehicles and Multi Utility vehicles to our nearest Dealer/ Depot, name of which will be communicated to you after getting first information from you. 19. Along with each Light Commercial vehicles and Multi Utility vehicles, a separate stock 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 Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7.2003 to 30.4.06. During this period, BAS was defined under Section 65 (105)(19) as under: "business auxiliary service" means any service in relation to, - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or [Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, " service in relation to promotion or marketing of service provided by the client" includes any service provided in relation to promotion by the client, in whatever form or by whatever name called, whether or not conducted online, including lottery, lotto, bingo. (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 1.4.06. 7. When the statute is clear and leaves no scope for ambiguity the contention of the appellant that it had bona fidely belief that the impugned services were not covered under BSS can not be sustained. The appellant has argued that service recipient vide letter dated 8.12.07 stated that no service tax was payable as vehicles were removed on their own power and depots were treated as place of removal. We have perused the said letter dated 8.12.2007. From the said letter, it no way follows that merely because the depots are treated as place of removal of exercisable goods, any services provided 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 halluc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While on the face of it there seems to be some traction in this contention, on closer examination we find that Revenue sought information with regard to services rendered for the period January 2008 to September 2008 vide letter dated 26.11.2008. It was followed by reminders dated 14.1.09, 26.2.09, 2.3.09, 12.3.09 and 26.3.09. The appellant sent reply dated 9.4.09 vide which it merely forwarded ST -3 return for the period April, 2008 to September 2008 which too was incomplete. Revenue again reminded for supply of information vide letter dated 16.4.09 followed by reminder dated 6.5.09, in response to which vide letter dated 18.5.09 it provided figures of gross amount received only for the period January 2008, February 2008 and March 2008 without mentioning the amount of service tax leviable or paid. This behaviour 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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