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TMI Blog2012 (11) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... ying service tax. It was also found that they were providing services of marketing of public issue of shares by companies and were receiving commission for such activity. Such activity was taxable under the category of Business Auxiliary Services but the appellant was not registered under the said category and was not paying service tax. In a statement recorded from Shri . K.G. Goyal, the manager of the concern he agreed to pay service tax amount of Rs.19153/- towards stock broker service short paid for the period April 05 to Sep 05. The appellant paid such tax on 21-12-2005. The liability of Rs.5601/- under business auxiliary service was disputed. 2. Later the department issued Show cause Notice dated 04-05-2006 demanding tax short paid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant relies on the Circular No. 80/10/2004-S.T., dated 17-9-2004 issued by CBEC reading as under: "18. Expansion of Business auxiliary service: 18.1 The scope of an existing taxable service (i.e. Business Auxiliary Service) has been expanded to include activities relating to procurement of inputs, production of goods (not amounting to manufacture) or provision of services on behalf of a client. The tax is leviable only when the service provider is a commercial concern. 18.2 The pre-budget definition of Business auxiliary Service covered services, which relate to the sale and marketing side of a business. However, the auxiliary services which relate to procurements, inventory, pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices in relation to agriculture, printing, textile processing and education would remain exempt even if provided by such service providers, (refer Notification No. 14/2004-S.T., dated 10-9-2004)." 5. So the appellant contests that there was no liability on the appellant to pay tax under the head for business auxiliary service because the appellant was a proprietorship firm. 6. The appellant argues that the Show Cause Notice dated 04-05-2006 demanding tax under this category during the period 10-09-2004 to 30-09-2005 is time partially time barred when the appellant was acting on the basis of such clarification from the Ministry. Further the main brokers who paid commission for marketing activity had paid service tax and they were only g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention to levy tax on proprietary ship concern under the category of "Business Auxiliary Service". So I set aside the demand under this category. Once the argument is accepted the penalty under section 77 is not maintainable because it is imposed for not taking registration under Business Auxiliary Service. 12. I am not in agreement with the argument that there was no suppression of information because in a computerized environment there is no scope of making a mistake of the type claimed and it is obvious that the value was mis -declared for paying tax. However I take note of the decision of the Punjab and Haryana High Court in the case of CCE vs. City Motors - 2010 (19) S.T.R. 486 (P and H) and hold that there is no case for imposing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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