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TMI Blog2011 (6) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant. Thus show cause notice which invoked the extended period of limitation for demand of duty would be incorrect. The demand of Service Tax in this case would be within the limitation as provided in the law. Also strong force in the contention raised by assessee that the amount collected by them should be considered as cum-duty amount. As regards the imposition of penalty having held there could be a bonafide belief, the provisions of Section 80 can be invoked & set aside the penalties imposed on the appellant under Section 78. Thus upholding appellant's liablity to pay Service Tax under the category of 'Business Auxiliary Services' within the period of limitation from the date of issuance of show cause notice. - ST/136 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected the appeal filed by the appellant. 3. Learned counsel appearing on behalf of the appellant would take us through the Order-in-Appeal and the allegations in the show cause notice. It is her submission that the activities of appellant would come under the category of services rendered by them as a commercial concern and services would be categorized under "other financial services" and they would get the benefit of Notification No.25/2004-ST dated 10.9.2004. It is also her submission that both the lower authorities have not considered this angle of the service rendered by them and have held that the appellant is providing 'Business Auxiliary Services'. It is her submission that Notification No. 13/2003-ST will also be applicable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants were getting an amount as commission. 6. On perusal of the Notification No.25/2004, we find that the services rendered by the appellant would not fall under the category of exemption sought to be given by the said Notification. Learned counsel was specifically pointing out towards clause (e) of the Notification which is reproduced below. (e) Services provided to a customer by any body corporate or commercial concern, other than a banking company or a financial institution including a non-banking financial company, in relation to banking and other financial services. 6.1 We find that this clause will not be applicable, as Hon'ble High Court of Kerala in the case of CCE Vs. Car World Autoline - 2010 (17) STR 449 (Ker.) has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. 6.3 We also find strong force in the contention raised by the learned counsel that the amount collected by them should be considered as cum-duty amount. The lower authorities need to recalculate the amount of Service Tax liability considering the entire amount received by the assessee as the cum-tax amount. 6.4 As regards the imposition of penalty, we are of the considered view that having held there could be a bonafide belief, the provisions of Section 80 can be invoked by us. By invoking the provisions and using the discretion of Section 80 of the Finance, Act, 1994, we set aside the penalties imposed on the appellant under Section 78 of the Finance Act, 1994. 6.5 In view of the foregoing, upholding that the appellant is liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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