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Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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PJ/CASE LAW/2014-15/2431

Whether table space provided by automobile dealer to financial institutions falls under BAS?

Case:-JAIKA MOTORS LTD Vs COMMISSIONER OF CENTRAL EXCISE, NAGPUR
 
Citation:-2014-TIOL-2033-CESTAT-MUM
 
Brief facts:-The brief facts of the case are that the appellants are a dealer of motor vehicles and in the business premises the appellants provided a table space to the Banks. The appellants were receiving certain amounts where the vehicles sold by the appellant are financed by the Banks. The commission is paid by the Bank/financial companies. The case of the Revenue is that the appellants are providing business auxiliary service to the Banks/financial companies in promoting their business.
 
Appellant’s contention:-The appellant, relying upon the decisions of the Tribunal in the case of Silicon Honda Vs CCE, Bangalorereported in2008 13 VST 698 = 2007-TIOL-1159-CESTAT-BANG and Shubhyan Motors Pvt. Ltd. vs. CCE 028 STT 282 = 2010-TIOL-1034-CESTAT-MUM, submits that mere providing a tablespace in the premises of the dealer cannot be considered as providing business auxiliaryservice to the Banks/financial institutions. The contention is that there is no agreement with theBank for promoting their business. The appellants are interested in selling their cars andtherefore the appellants had not provided any business auxiliary service.
 
Respondent’s contention:-The Revenue relied upon the findings of the lower authority and submits that the appellants are receiving certain amount of commission in lieu of the finance from the Banks and the same cannot be treated as a rent for providing table space.
 
Reasoning of judgment:- The Hon’ble court find that the issue whether the table space provided by automobile dealer to financial institutions falls under 'business auxiliary service' or not was referred to the Larger Bench in the case of Pagariya Auto Center vs. CCE, Aurangabadin appeal No. ST/103/10 = 2014-TIOL-141- CESTAT-DEL-LB. The Larger Bench of the Tribunal, after taking into consideration the earlier decisions, held as under:-
 
"21. Where mere space is provided along with furniture for facilitating accommodation of representatives of financial institutions in the premises of an automobile dealer and consideration is received for that singular activity, such consideration may perhaps constitute a rent for the provision of space and associated amenities. Such restricted relationship/transaction may not amount to BAS. If on the other hand, the transactional documents and other evidence on record indicates a substantial activity falling within the contours of any of the integers of the definition of BAS, spelt out in Section 65 (19), then it would be legitimate to conclude that BAS is provided."
 
In the present case, they find that the Revenue had not produced any evidence by way of agreement or any guidelines from the Bank or financial institutions for the basis of giving commission to the appellants. In absence of such evidence, it cannot be said that the appellants provided any business auxiliary service to the Bank or financial institution. In view of the above, the impugned order is set aside and the appeal is allowed.
 
Decision:- Appeal allowed.

Comment:- The analogy of the case is that there is no evidence by way of agreement or any guidelines from the bank or financial institutions for the basis of giving commission to the appellants. There is no agreement of the appellant with the bank for promoting their business. Accordingly, the table space provided by automobile dealer cannot be considered as providing business auxiliary services.

Prepared by:- Monika Tak

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