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2019 (2) TMI 593 - AT - Service TaxExtended period of limitation - Business Auxiliary Service - claim of N/N. 14/2004-ST not raised - Held that - There is no dispute that admittedly, the appellant started payment of Service Tax without pointing out by the department. Therefore, the appellant have rightly entertained the bonafide belief regarding the non taxability of their service till 31.03.2006. Though the appellant have obtained the registration on 19.09.2006, the department has initiated action and record statement on 30.05.2007. Though the lower authority have not considered the notification as the same was not argued before them - There is no suppression of fact or malafide intention on the part of the appellant - the demand raised invoking the extended period would not sustain. Appeal allowed - decided in favor of appellant.
Issues involved:
1. Whether the service provided by the appellant falls under the ambit of Service Tax under the category of 'Business Auxiliary Service'? 2. Whether the service of the appellant was exempted under Notification No. 14/2004-ST? 3. Whether the demand for Service Tax is time-barred? 4. Whether there was suppression of fact or malafide intention on the part of the appellant? Comprehensive Analysis: 1. The appellant provided the service of 'Commission Agent' in the business of trade, for which they received commission during the years 2004-2005 and 2005-2006. The department contended that this service falls under the ambit of Service Tax under the category of 'Business Auxiliary Service' as defined under Section 65 of the Finance Act, 1994. The appellant obtained Service Tax Registration in September 2006 and started paying Service Tax from April 2006 onwards. An SCN was issued demanding Service Tax for the mentioned period, leading to the confirmation of demand in the adjudication order. The appellant's appeal before the Commissioner (Appeals) was rejected, resulting in the present appeal before the Tribunal. 2. The appellant argued that their service was exempted under Notification No. 14/2004-ST as they were a proprietorship concern providing the service of 'Commission Agent' for textile goods. The appellant claimed that the demand was time-barred as the SCN was issued on 29.02.2008, beyond the normal one-year period. The appellant believed they were not liable for Service Tax during the relevant period due to the classification of 'Commercial Concern' as the liable entity, which was later amended to 'A person' from 01.05.2006. The appellant started paying Service Tax from 01.05.2006, and the registration was taken suo-moto on 19.09.2006. The appellant contended that there was no suppression of fact, citing various judgments in support of their argument. 3. The Tribunal, after considering both parties' submissions and the records, found that the appeal could be disposed of on the ground of time bar without delving into the case's merits. It acknowledged that until 31.03.2006, the term 'commercial concern' did not include individuals, which was later amended to 'A person.' The Tribunal noted that the appellant started paying Service Tax without any prompting from the department, indicating a genuine belief in the non-taxability of their service until 31.03.2006. Despite the appellant obtaining registration in September 2006, the department initiated action in May 2007. The Tribunal observed that the lower authority did not consider the exemption notification as it was not raised before them. However, even the eligibility of Notification No. 14/2004-ST was debatable, especially concerning the appellant. Considering the circumstances, the Tribunal concluded that there was no suppression of fact or malafide intention on the appellant's part, leading to the setting aside of the impugned order on the grounds of time bar, and allowing the appeal without delving into the case's merits.
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