SHIV MOTORS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) AFTER hearing both sides duly represented by Ms. Abha K. Sharma, learned authorised representative for the Appellant and Shri S.K. Mall, learned SDR for the revenue, I find that the appellants are primarily engaged in the business of sale and purchase of old vehicles, Apart from the above, they were also acting as direct selling agent of ICICI Bank Ltd., HDFC Bank and Kotak Mahindra Finance and were receiving the commission from them. A service tax of Rs. 2,25,941 stand confirmed against the appellant for the period 1 -7 -2003 to 31 -3 -2006 by considering the said services as falling under 'Business Auxiliary Service'. Penalties also stand imposed upon the appellants in terms of various provisions of Finance Act, 1994. The appellants have not disputed that the said services are covered under 'Business Auxiliary Services' but has submitted that apart from the above, they have also earned income on account of sale and purchase of old vehicles which is not liable to service tax. The said plea of the appellant has been rejected by the authorities below as no bills stand produced by them except copies of the sales tax. The appellants have also pleaded that this being a new levy, they were not aware of the same, in which case the benefit of Section 80 should be extended to them.

(2.) IN view of the above submission, I set aside the impugned order and remand the matter to the original adjudicating authority for verifying the factual position as to whether their income was actually earned on sales and purchases of old vehicles. The appellants are free to produce on record co -lateral evidence in support of their contention. The authorities would also consider as to whether the appellants are entitled to benefit of Section 80 of Finance Act, 1994 for the purpose of imposition of penalty.