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TMI Blog2010 (5) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax not demandable when excise duty paid on full value. pre-deposit waived. - ST/381/2009 - S/502/2010-WZB/AHD - Dated:- 31-5-2010 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) S/Shri V.S. Nankani and Hardik Modh, Advocates, for the Appellant. Shri J.S. Negi, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. - The prayer in the application is to dispense with the condition of pre-deposit of service tax of Rs. 3,71,72,276/- confirmed against the appellant along with imposition of penalty of identical amount under the provisions of Section 78 of Finance Act, 1994. In addition, penalty of Rs. 5,000/- stand imposed under Section 77 and Rs. 200/- per day under Section 76 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same to their buyers, should be treated as commission, liable to service tax under the head of Business Auxiliary Service. For better appreciation, we reproduce the Para 46 of the Commissioner's order. "46. In the instant case, the undisputed fact is that the goods are manufactured for delivery to ACC by WSL. There is an intermediary who can either be a buyer and seller or a commission agent. The intermediary AIA claims to be a buyer of goods from WSL and seller to ACC. In the records of Central Sales Tax authorities, it is showing that the sale made by WSL to AIA is an interstate sale and the sale made by the AIA to ACC is also an interstate sale made during movement of goods from AIA to ACC in terms of Section 6 of the Central Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIA and thereafter from AIA to ACC." 5. As is clear from the above, that the goods are being sent by M/s. Welcast Steel Ltd. directly to M/s. ACC who are the customers of M/s. AIA, the sale is actually to M/s. AIA i.e. the appellant. This fact is not being disputed by the Revenue. Further, the fact that M/s. Welcast Steel Ltd. has paid Central Excise duty by adopting the value at which the M/s. AIA has sold the goods to M/s. ACC also does not stand disputed by the Revenue. When for the purpose of payment of Central Excise duty, the sale value of M/s. AIA has been taken into consideration, we really fail to understand as to how the profit made by M/s. AIA for sale of goods to M/s. ACC can be termed to be commission or discount so as to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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