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TMI Blog2016 (1) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... they contended that this was a classification decided upon by tax authorities. Having registered themselves as a service provider and paid taxes as provider of "business auxiliary service" for a certain period, they are bereft of any ground to claim error in classification. In the absence of any justification, procedurally or substantively, to seek a revisit of classification of the service rendered by the appellant, there is no legal provision to do so. The plea of taxability and any exemption from service tax is irrelevant in the context of the inclusion of service tax in the amounts billed to their principals as job-work charges. It is seen that the appellant has collected service tax along with consideration from its principals f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 26th August 2009 and 20th January 2010 totalling ₹ 3,00,000. Commissioner of Central Excise (Appeals), Pune I, by order-in-appeal no V2PI/139/STC/2010 dated 14th October 2010 concurred with the original authority. Aggrieved by this order, M/s Mohtamaan Industries is before the Tribunal challenging the classification and seeking the setting aside of penalties. 3. The appellant claims that their activity is manufacture and hence not liable to be taxed as business auxiliary service , that they were eligible for exemption under notification no. 8/2005-ST dated 01/03/2005, that they would have paid service tax had not financial difficulties intervened, that the extended period could not have been invoked for the period prior to one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im instead of using the second stage of appeal as a platform to seek a decision on non-leviability. This Tribunal in Malabar Management Services (P.) Ltd. v. CST [2008] 14 STT 107 (Chennai) has foreclosed the option of challenging the classification by this route thus: We have also noted that the appellants got themselves registered with the department as providers of Business Auxiliary Service and were paying service tax in that category from July 2003. They have been doing so voluntarily and not under protest ......... They are precluded from contending that the service rendered by them to ICICI Bank upto March 2005 was something different from Business Auxiliary Service......... In the absence of any justification, procedurally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted. In the present case, appellant recovered the entire service tax from their customers and also did not file periodical prescribed returns with the Revenue. Non-filing of returns and non-payment of service tax, in spite of collecting the same from the customers, clearly convey mala fide on the part of the appellant making them liable to penalty under Section 78 of the Finance Act, 1994. The case laws relied upon by the appellant does not pertain to a situation when service tax was recovered by the appellant and deliberately not paid to the Revenue. The facts of the relied upon case laws are different than the facts of the present proceedings and are not applicable. 7. For the above reasons, appeal is rejected. - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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