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TMI Blog2016 (12) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... not be blamed for entertaining a bona fide belief that the activity undertaken by them and the commission received by them may not be liable to payment of service tax. There can be no basis for alleging suppression or willful mis-statement, and invoking extended time limit for recovery of service tax - demand restricted within the normal time period available under Section 73 of the Act - imposition of penalty also set aside - For re-quantification of demand falling within the normal time, the case is remanded to the original adjudicating authority - appeal allowed by way of remand. - Appeal No.ST/253/2012-CU[DB] - Order No.55161/2016 - Dated:- 21-11-2016 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. V. Padmanabhan, Member (Technic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged in the present appeal. 3. Heard Shri Archit Agarwal, ld. consultant for the appellant and Shri Ranjan Khanna, ld. Departmental Representative for Revenue. 4. The main ground on which the impugned order has been challenged is that the appellant has not provided any services to the airlines, who have provided services only to cargo companies for which service tax already stands paid. Their submission is that the nature of activities carried out by them is identical to the activity carried out by an air travel agent. They have support of the Madras High Court decision in the case of Airlines Agents Association Vs. Union of India [2006 (3) STR 3 (Mad,)], in which it has been held that the services rendered by the airline agent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to the booking of passage for travel by air excluding the airfare, but including the commission, if any, received from the airlines in relation to such bookings. The petitioners had argued that the tax was on the services offered by air travel agents to the customers in relation to booking of passages travel by air. However, the measure of tax was on the basis of the commission earned by the air travel agents from the airlines for promotion of the business of the airlines. Accordingly, the petitioners case was that the tax cannot be imposed against this commission, which has nothing to do with the service offered by the air travel agents to their customers in booking of passages. The Hon'ble High Court upheld the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission is paid to the appellant. Under the circumstances, we are of the view that the issue before us is different from the issue which was before the Hon'ble Madras High Court. Consequently, it would not be proper to base the decision on the observations made by the Hon'ble High Court in the context of the Writ Petition challenging the validity of the provisions of Section 67 (k) of the Act. We thus, conclude that the commission received by the appellant from the airlines is liable for service tax under the category of BAS as has been held by the authorities below. 7. The demand in the present case is covering the period 2003-04 to 2006-07. The relevant Show Cause Notice has been issued on 17.03.2008. However, it has to be n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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