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TMI Blog2017 (9) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... d bank payment gateway. Payments for the sale made by merchants using appellant s portal was collected by the appellant and the goods were delivered to the buyer by the merchant on confirmation of receipt of price. The appellant remits the net sale price after deducting their consideration. They were not discharging service tax on the amount so retained by them. Department was of the view that they were rendering services under the category of Business Auxiliary Service for the consideration received by deducting their commission. On being pointed out, the appellants paid an amount of Rs. 24,94,830/- towards service tax along with interest. A show cause notice was issued for the period 1.7.2003 to 28.2.2007 raising the above allegations and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;. Though the appellant contended before the lower authorities that the appellant would fall within the definition of commission agent, such contention was not considered at all observing that the appellant plays a role more than that of a commission agent. He submitted that the appellant was receiving consideration only on the basis of sale of the goods by utilizing the web portal of the appellant. Even though the appellant was collecting sale proceeds and forwarding to merchants, this activity would also fall within the definition of commission agent and that the appellant would be eligible for the benefit of the notification. He relied upon the decision of the Tribunal in the cases of Brindco Sales Ltd. Vs. Commissioner of Service Tax - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r than which fall within the definition of Business Auxiliary Service, for example, they collect the amount on behalf of the merchants from the buyers and pay the same to the merchants. From the sale proceeds the appellant deduct their commission and remits the net sale to the merchant. That therefore they do not fall within the definition of commission agent. The non-payment of service tax would not have come to light but for the investigation conducted by the department. The appellant failed to take registration under Business Auxiliary Service to discharge service tax liability for the said activity. That therefore they are guilty of suppression of facts and the demand raised invoking extended period is legal and proper. 5. Heard both s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found fault with if they believed bonafidely that they would fall within the definition. In the decisions relied upon by the appellant, the Tribunal has considered a similar issue that even the assessee was rendering some other services apart from that of commission agent service, the benefit of the notification has to be extended to the assessee. Following the said decision, we hold that the demand for the period 1.7.2003 to 8.7.2004 is unjustified and requires to be set aside which hereby do. 8. The appellant has pleaded to set aside the penalty imposed under section 78 of the Finance Act, 1994. There is no challenge with regard to the payment of service tax made after 9.7.2004. Taking into consideration the fact that the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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