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TMI Blog2020 (12) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... on the incentives received by the appellant under the category of "business auxiliary service" [BAS]. 3. The demand has been confirmed on the following: (i) The incentive amount received by the appellant under BAS. (ii) The registration and number plate charges received by the appellant from the customers for registration of the vehicles with the Regional Transport Authority under BAS; (iii) The miscellaneous income in the nature of penalty on bouncing of cheques and processing charges under BAS; and (iv) Transportation charges paid by the appellant under "goods transport agency" services [GTA]. 4. The show cause notice dated May 9, 2014 is for the period April 2012 to March 2013. The total demand confirmed under BAS is Rs. 24,91,202/-, while that under GTA is Rs. 35,117/-. The demand has been confirmed with interest under section 75 of the Finance Act 1994 [the Finance Act] and penalty under section 78 of the Finance Act. 5. It would be pertinent to state here that for the previous period from 2007-08 to 2011-12, a show cause notice dated October 9, 2012 was issued to the appellant on the same issues. The demand was confirmed by order dated November 7, 2013 but this or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of incentives received on such account cannot, therefore, be treated as consideration for any service. The incentives received by the appellant cannot, therefore, be leviable to service tax. 11. In this connection, reference needs to be made to the decision of the Tribunal in Rohan Motors Ltd., which is a case relating to the appellant, but for a period prior to July, 2012. The Tribunal observed as follows: "As per the agreement with MUL, the appellant has received various incentives/ discounts / bonus etc. from MUL from time to time. The income received under these heads was accounted by the appellant in their books of accounts as "miscellaneous income‟. During the course of audit of the books of accounts of the appellant, the Department noticed such Misc. income and took the view that such amounts received by the appellant from MUL are consideration towards promotion and marketing of the vehicles manufactured by MUL and such consideration is liable for payment of Service Tax under the category of Business Auxiliary Service. By taking the above view, show cause notice dated 17.10.2011 was issued covering the period 01.04.2006 to 31.03.2011. Further, show cause notice dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, we set aside the demand of Service Tax on such commission received. 7. A portion of the demand also has been raised under the category of GTA. The appellant has paid the freight expenses in connection with transportation of Cars to their customers. However, they have not issued any consignment notes which are necessary to identify the appellant as a goods transport agency. As per the views expressed by the Tribunal in the case of South Eastern Coal Fields Ltd. (supra), in the absence of consignment notes, the activity of the appellant cannot be classified under GTA service. Consequently, we set aside the demand under GTA service." 13. The same view was taken by the Tribunal in Commissioner of Service Tax, Mumbai-I Vs. Sai Service Station Ltd.[ 2013(10) TMI 1155-CESTAT Mumbai] 14. In regard to the period post July, 2012, reliance has been placed by the learned Counsel for the appellant on an order dated March 23, 2017 passed by the Joint Commissioner, Central Excise in the matter of M/s Rohan Motors Ltd. The period involved was from October, 2013 to March, 2014 and 2014-15. The Joint Commissioner, after placing reliance upon the decision of the Tribunal in Sai Service Station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge the said order of the Assistant Collector. The High Court not only quashed the order passed by the Assistant Collector but also directed the Department to allocate the matter to a competent officer for passing a proper order. It is against this decision of the Bombay High Court that the Union of India preferred an Appeal before the Supreme Court. The Supreme Court observed as follows:- The High Court has, in our view, rightly criticized this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasized that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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