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TMI Blog2015 (2) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... fide reason and, hence, invoking Section 80 of the Finance Act, 1994 penalty under Section 76, 77 and 78 have to be waived. - Decided partly in favour of assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... security of any property or person by providing security personnel or otherwise including the provision of service of investigation/detection or verification of any fact or activity, that during period till 30th April 2006, in terms of the definition of security agency as given in Section 65 (94) and of Manpower Recruitment or Supply Agency as given in Section 65 (68), the security agency or manpower recruitment or supply agency were required to be a "commercial concern", that it is only w.e.f. 01/05/06 that the term "commercial concern" was replaced by "any other person", that in view of this, during period prior to 01/05/06, if the service of security agency or manpower recruitment or supply agency was provided by any entity which is not a "commercial concern", the same would not be taxable, that the appellant being a cooperative society constituted under Rajasthan Cooperative Societies Act for welfare of the ex-servicemen, is not a commercial concern and, hence, during the period prior to 01/05/06, the service provided by the appellant was not taxable, that in this regard he relies upon the judgments of the Tribunal in the cases of Kerala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in the case of Union of India vs. Bharat Alluminium Co. Ltd. reported in 2012 (26) S.T.R. 101 (Chattisgarh), that in all these judgments it has been held that when short payment or non-payment of tax was due to bonafide belief on the part of the assessee on account of conflicting judgments of the Tribunal and High Courts the extended limitation period under proviso to Section 11A (1) of the Central Excise Act, 1944 cannot be invoked. 4. Shri Amresh Jain, the learned DR, defended the impugned order by reiterating the findings of the Commissioner and pleaded that though during period prior to 01/05/06, the word "commercial concern" had been used in the definitions of the security agency and manpower recruitment or supply agency, as given in Section 65 (94) and Section 65 (68) respectively of the Finance Act, 1994, Hon'ble Punjab & Haryana High Court in the case of Punjab Ex-Service Corporation vs. Union of India (supra) has after considering the definition of "security agency" under Section 65 (94) during period prior to 1/5/06, has held that the use of the word "business" in the definition of 'security agency' in Section 65 (94) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by 'any other person'. The appellant's contention is that various Cooperative Societies registered under the Cooperative Societies Act of the respective States for welfare of ex-servicemen by providing employment to them are not commercial concern and hence during period prior to 01/05/06 their activity would not attract service tax and in this regard they rely upon various judgments of the Tribunal as mentioned above. However, Hon'ble Punjab & Haryana High Court in the case of Punjab Ex-Service Corporation vs. Union of India (supra) has taken a contrary view. In our view it is the judgment of Hon'ble Punjab & Haryana High Court which would be binding on this Tribunal as there is no contrary judgment of any other High Court. Therefore, we hold that during the entire period of dispute including the period prior to 01/05/06, the activity of the appellant was taxable under Section 65 (105) (k) readwith Section 65 (68) and Section 65 (105) (w) readwith Section 65 (94) of the Finance Act, 1994. However, on the question of limitation, we are of the view that since during the period of dispute there were a series of judgments of the Tribunal holding that the Cooper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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