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TMI Blog2018 (7) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... hority to apply the tests laid down by the Larger Bench of the Tribunal - matter on remand - In such de novo proceedings, the adjudicating authority shall also look into the contention of the respondents that the proceedings per se are hit by limitation. Penalties u/s 77 and 78 - Held that:- The penalties are not warranted and is set aside. Appeal allowed by way of remand. - Application No. ST/Misc [CT]/41475/2017 & Appeal No.ST/524/2011 - Final Order No. 42030 / 2018 - Dated:- 18-7-2018 - Hon ble Ms. Sulekha Beevi, C.S., Member ( Judicial ) And Hon ble Shri Madhu Mohan Damodhar, Member ( Technical ) Shri B. Balamurugan, AC (AR) For the Appellant Shri K. A. Parthasarathy, Advocate For the Respondent ORDER Per Bench The facts of the case are that M/s.Vasanth Co., the respondents herein, are engaged in the business of trading in consumer durables like TV, Refrigerators, Washing Machines etc. in the show rooms. Pursuant to investigations carried out by the Directorate General of Central Excise Intelligence (DGCEI), it appeared that respondents had tie up with various financial institutions like GE Countrywide, TVS Finance etc. for purchase of consumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promoting the business of these financial institutions the respondent had received volume based incentives. The statement of Shri Jeyaraj has not been retracted nor disputed by the respondent. 3. On the other hand, on behalf of the respondent, Ld. Counsel Shri K.A.Parthasarathy made oral and written submissions which can be broadly summarized as under : i) The Larger Bench decision in Pagariya Auto Center Vs CCE Aurangabad (supra) has clearly held that merely providing table space to financial institutions in the show room cannot be concluded to be provision of Business Auxiliary Service . Being an restricted activity, the Tribunal also held that for concluding that BAS has been provided, the transactional documents and other evidence on record should indicate the substantial activities falling within the contours of any of the integers of the definition of Business Auxiliary Service . ii) However, in the instant case, no transactional documents have been relied upon by the original authority as well as by Commissioner (Appeals) and only statement of Shri S. Jeyaraj, Accounts Manager has been relied upon. iii) All that the respondents did was to direct prospective cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications. Further, even though in the reply to SCN dt. 30.04.2009 the respondents had inter alia, submitted a chronology of communications between DGCEI and, in particular, the fact of their having given all details called for and had contended that the demand is therefore barred by limitation of time, both the lower authorities have not gone into depth on these aspects. 6. Be that as it may, following the principle of stare decisis, this forum will fully rely on the ratio laid down by the Larger Bench of the Tribunal in Pagariya Auto Center Vs CCE Aurangabad (supra). The relevant portions of the Tribunal s Larger Bench decision are as under : 20. On a consideration of the apparent conflict of opinion in the decisions mentioned in the order of reference and the other decisions which were cited at bar, it is clear that no uniform principle emerges as would guide determination of whether a particular transaction involving an interface between an automobile, dealer and bank or financial institution would per se amount to BAS. The identification of the transaction and its appropriate classification as the taxable BAS or otherwise must clearly depend upon a careful analysis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal in Sharya Motors Vs CST Mumbai 2016 (43) STR 158 (Tri.-Mumbai) where it has been held as follows : 6. In short, the appeal is disposed of by upholding the tax liability with interest, under the Business Auxiliary Services for commission received from the financial institution, while the tax demand on amount received as target incentive is set aside. Interest liability on the tax confirmed is upheld while penalties are set aside. Appeal disposed of. In Ved Automotives Vs CCE Kanpur 2016 (44) STR 140 (Tri.-All), the Tribunal in fact not only held that penalty is not imposable but also that extended period is not invocable. Relevant portion of this order is as under : 11. Thus, we find that there was interpretational issue, as to liability to service tax in the matter, as is evident by the nature of activity and clarification by the Larger Bench of this Tribunal. Accordingly, we hold- (i) Service tax is payable under the category of BAS under Section 65(19), by the appellant for the normal period; (ii) Extended period is not invocable; (iii) Penalties imposed are set aside. So also, in Addis Marketing Vs CCE Mumbai 2017 (50) STR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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