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TMI Blog2024 (6) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/ST/Alld/2019 dated 22/05/2019 passed by Commissioner (Appeals) Central Excise CGST, Allahabad. By the impugned order following has been held:- 4.1 I have gone through the grounds of appeal, the averments made at the time of the personal hearing and all other material/ documents available on record. It is observed that the issue of logistic/ handling charges raised in this appeal, has already been decided vide the Orders-in-Appeal No.69/ST/Alld/2019 70/ST/Alld/2019 both dated 15.04.2019 and Order-in-Appeal No.125/ST/Alld/2019 dated 20.05.2019, in respect of similarly placed other car dealers. 4.2 Since the facts of the present appeal are same as involved in the aforesaid Orders-in-Appeal, I, after following these Orders-in-Appeal, hold, as under: (i) The appellant, while carrying out the transaction with their customer, had carried out the activities of (i) trading of cars which is in the Negative List of Service (Section 66D(e) of the Act) and (i) facilitation of car delivery for which they had collected logistic charges (as part of the entire transaction). which is covered under Section 65B(44) of the Act and is neither in the Negative List of Services nor is exempted. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant period of payment of Service Tax under the provisions of Section 75 of the Finance Act, 1994 read with Section 174 of Central Goods and Service Tax Act, 2017. I impose penalty of Rs.59,23,291/- [Rupees Fifty Nine Lakh Twenty Three Thousand Two Hundred Ninety One only) upon the party under Section 78 of the Finance Act, 1994 read with Section 174 of Central Goods and Service Tax Act, 2017, for willful suppression of facts with intent to evade the payment of Service Tax and for the contravention of Section 78 of the Finance Act, 1994 and the Service Tax Rules, 1994. I, however, refrain to impose the penalty under Section 76 of the Finance Act, 1994 read with Section 174 of Central Goods and Service Tax Act, 2017. I impose a penalty of Rs.10,000/- (Rupees Ten Thousand only) upon the party under Section 77(2) of the Finance Act, 1994 read with Section 174 of Central Goods and Service Tax Act, 2017. I also impose a penalty of Rs.2,000/- (Rupees Two Thousand only) upon the party under Section 77(a) of the Finance Act, 1994 read with Section 174 of Central Goods and Service Tax Act, 2017. 2.4 Aggrieved respondent filed appeal before Commissioner (Appeals), who have allowed the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with Section 66F of ibid. (i) It is submitted that it was categorically informed during recording of statement that the amount of logistic charges were mentioned in the Price-list for the last six to seven years. This means that the cars were earlier sold without collecting the logistic charges even though the same were carrying from stockyard to show room. Moreover, this practice was not followed by the dealers of two wheelers, who carried out the same activity. In the instant case, the different elements are not integral to one overall supply to bundle the services as they had not charged the logistic charges when cars supplied to other Hyundai car dealers as stated by the assessee in their statement(s). (ii) Again, in the O-I-A it has been mentioned that for services to be considered as bundled service, it is necessary that different elements are not available separately. Whereas, in the present case the amount of logistic/handling charges are available separately and the same has been collected as over and above the Ex-showroom price. 3.1 We have heard Shri Manish Raj learned Authorised Representative appearing for the appellant-revenue and Shri Amit Awasthi alongwith Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed. From the principle laid-down by Hon ble Supreme Court in the above decision, it is settled that when VAT has been paid on the sale of goods, the question to claim service tax thereon does not arise. 7. We further find that even in the worse situation in various cases where the parts and components were used in repair and maintenance of motor vehicle even then merely because the part so used in repairs and maintenance were separately billed and VAT was paid thereon, the Tribunal held that on value of such parts, though used for repair and maintenance service of the vehicle will not be liable to service tax as the same was suffered VAT. In this regard the following judgments are reproduced:- (a) In Ketan Motors Limited the Tribunal held as under 5. We have carefully considered the rival submissions. As the issue lies in a narrow compass, after dispensing with the requirement of pre-deposit, we take up the appeal itself for consideration. 5.1 In para 3.2 of the impugned order it is stated that the appellant had furnished the following information and documents vide letter dated 21-9-2011 : (i) Year wise details of value of spare parts used during the course of servicing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal passed the following order:- 5. We have carefully considered he submissions made by both the sides. We notice that the appellant are charging handling charges whenever automobile parts are sold either independently or part of the service and repair of automobiles. In both the situations, invoice are issued for the sale of the goods as well as for collection of service charges for the services rendered. Handling charges were incurred in connection with the procurement of the goods and are included in the value of the goods sold and sales tax/VAT liability is discharged on the value inclusive of the handling charges. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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