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TMI Blog2018 (10) TMI 1993X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority has also imposed a penalty on the amount confirmed under Section 76 of the Finance Act. Being aggrieved by the impugned order, the appellant has preferred this appeal. 2. The facts of the case is that the appellant is a dealer of M/s Maruti Udyog Limited and registered with the Service Tax Department for providing taxable services viz. servicing of motor vehicles in terms of Section 65(105)(zo) of Finance Act, 1994. During the course of audit, it was noticed by the departmental officer that the appellant has not paid the service tax on various services or sale of spare part consumed while rendering of repair or maintenance, incentive for achievement on sale from M/s Maruti Udyog Limited under Business Auxiliary Service, sharing of income against the registration of motor vehicle under category of Business Auxiliary service and handling charges received from the buyer for the delivery of vehicle also under Business Auxiliary Service. As per the Department these services were liable to be included for the purpose of payment of service tax in terms of Section 67 of the Finance Act. In addition to above, demand of irregular credit availed on insurance service, advertisem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under dealership agreement with Maruti, sale of spare parts during the servicing of the vehicle and RTO charged required for a registration with RTO for getting the sold vehicle registration. We find that these issues have been decided in favour of appellant in the identical set of facts and circumstances by Toyoto Lakozy (supra). The relevant portion of the impugned order is contained in para 3 to 6 are reproduced as under: "3. Appellant contends that Rs. 81,35,813/- and Rs. 1,21,47,133/- for the two periods has been wrongly subjected to tax because the agreement between the appellant and M/s. Toyota Kirloskar Motor Limited is one of supply of vehicles by the latter on 'principal-to-principal' basis on which title and risk, as per Agreement, are passed on to appellant when the vehicles are excise cleared and placed on common carrier. Depending on order quantity, the manufacturer raises invoices after according discounts which are designated as commission/incentive merely as a management terminology. Learned Chartered Accountant for appellant places reliance in the decisions of the Tribunal in Jaybharat Automobiles Limited v. Commissioner of Service Tax, Mumbai [2015-TIOL-1570-CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the Regional Transport Officer (RTO). The impugned orders have held that Rs. 35,80,777/- and Rs. 29,75,772/- are due as taxes for rendering of 'business auxiliary services'. Learned Chartered Accountant draws our attention to the decision of the Tribunal in Wonder Cars Pvt. Ltd. v. Commissioner of Central Excise, Pune-I [2016-TIOL-190-CESTAT-MUM = 2016 (42) S.T.R. 1055 (Tri.)]. This Tribunal, in its recent order in M/s. Arpanna Automotives Pvt. Ltd. v. Commissioner of Customs & Central Excise [Final Order Nos. A/85827-85828/16/STB, dated 3rd February, 2016] [2016 (43) S.T.R. 397 (Tri.)], held that "7. In our considered view helping the purchaser with registration with the RTO, cannot be any consideration by Business Auxiliary Service, in view of the foregoing, we hold the Service Tax demand of the amount retained by the appellant in respect of RTO registration fees is not sustainable. The impugned order is set aside. This Bench in the case of Wonder Cars Pvt. Ltd. v. Commissioner of Central Excise, Pune-I - 2016-TIOL-190-CESTAT-MUM has held that amount collected as extra charges for RTO registration is not covered under "support services of business and commerce". 8. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of prospective customer and public relation services, and includes services as a commission agent, but does not include any information technology service. Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this clause, "information technology service" means any service in relation to designing, developing or maintaining of computer software, or computerized data processing or system networking or any other service primarily in relation to operation of computer systems;" After 10-9-2004 "Business Auxiliary Service" means any service in relation (19) 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 (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, "inputs" means all goods or services intended for use by the client; (v) production or processing of goods for, or on behalf of the client; or (vi) provision of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Therefore, we do not understand how service tax levy would apply especially when the goods are subject to sales tax/VAT on a value inclusive of handling charges. It is not in dispute that the handling charges are incurred in connection with the procurement of the parts. If that be so, they will obviously form part of the value of the goods when they are subsequently sold. 5.1 Section 67 of the Finance Act, 1994 mandate levy of service tax on a value or consideration received for rendering the services. Therefore, any consideration received for supply of goods is not covered within the scope of Section 67. The decisions of the Tribunal in the case of Ketan Motors Ltd. and Dynamic Motors, cited supra, also support this view. 6. Accordingly, the impugned order is clearly unsustainable." 8.3 Regarding the sale of spare part, sold while servicing of the motor vehicle, which the department intends to include in assessable value in terms of Section 67 of the Finance Act for payment of service tax, is also decided in favour of appellant in case of Tanya Automobiles (P) Ltd. (supra). The relevant para of the said order is quoted as under : "7. Heard learned DR, who supports the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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