Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of CJ Mathew (Technical Member) and Ajay Sharma (Judicial Member), allowed an appeal which was filed against the impugned order of the Commissioner of Central Excise & Service Tax (Appeals -IV) wherein he had upheld demand of Rs 29,57,199/-, for the period from 2003 to 2006, on discount allowed by the supplier of goods for sale to corporate customers, on commission from banks and financial companies and on payments received for insurance referral, the dispute that persists is limited to the demand for tax of  Rs. 3,70,994/- on the first of the issues and to the entirety of penalties imposed.

The appellant was an authorized dealer of M/s Skoda Auto India Pvt Ltd and, in accordance with their agreements, was allowed to offer discounts on sale of vehicles to their corporate customers to be reimbursed to them and had facilitated banks and financial companies, as well as insurance companies, to service loan and insurance requirements of customers from their premises. The demands were confirmed by the original authority under section 73 of Finance Act, 1994, along with interest thereon under section 75 of Finance Act, 1994, while imposing penalty of like amount under section 78 of Finance Act, 1994.

Chartered Accountant, appearing for the appellant, submitted that the dispute pertaining to discounts offered by car manufacturers to their dealers for onward transmission to corporate customers was not liable to tax as ‘promotion or marketing or sale of goods produced or belonging to clients’ within the enumeration of ‘business auxiliary service’ in section 65(19) of Finance Act, 1994.

Authorised Representative contended that the appellant had failed to discharge their tax liability at the appointed intervals on ‘commission’ earned by them and, therefore, the imposition of penalties was valid.

The Tribunal noted that the dispute pertaining to discount offered to corporate customers had attained finality relying on the decision of Toyota Lakozy Auto Pvt Ltd v. Commissioner Service Tax, Mumbai –II & V [2017 (52) STR 299 (Tri.-Mumbai)] and thus demand of Rs. 3,70,994/-, along with interest, and penalty under section 78 of Finance Act, 1994 failed to survive.

The Tribunal then noted the decision in Gemini Mobiles Pvt Ltd v. Commissioner of Central Excise & Service Tax, Lucknow [2015- TIOL-15670-CESTAT-ALL] for arriving at the conclusion of circumstances not being conducive to invoking of section 78 of Finance Act, 1994 is relevant.

The Tribunal finally found that the invoking of the extended period for the purpose of imposition of penalty was not sustainable.[Autobahn Enterprises Pvt Ltd v. Commr. Of ST, Service Tax Appeal No. 87226 of 2014, decided on 07-09-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

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