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TMI Blog2017 (11) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... fusion in this period about payment of Service Tax on Commission agent service for which they failed to collect/charge Service Tax from the recipient of Service and there cannot be any intention for if they have knowledge about Service tax liability they could have charged and collected it from the manufacturer. In turn the manufacturer would have availed cenvat credit on the service tax so paid as the services of procurement of sale orders for their manufactured goods fell into definition of input services. Hence, by no stretch of imagination, it may be held that this was intention for not paying Service tax - appeal dismissed - decided against Revenue. - Appeal No. ST/501/11 - Order No. FO/A/77604/2017 - Dated:- 30-10-2017 - Shri P.K.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing on behalf of the Revenue drew the attention of the Bench to the show cause notice and submitted that before issuance of the show cause notice, summons were issued to the assessee and it was only in response to the summons that the balance sheets were filed by the assessee. He also elaborated on the grounds of appeal filed by the Revenue and relied on the decision of Hon ble Supreme Court in the case of Coaltar Chemicals Manufacturing Co. v. Union of India [2003 (158) E.L.T. 402 (S.C.)]. 4. Ld.Counsel appearing on behalf of the respondents vehemently argued that vide Notification No.13/2003-ST dated 28.06.2003 the services of commission agents were exempted under Business Auxiliary Services . Therefore the assessee was under the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Business Auxiliary service as a Commission agent. The reason advanced by the appellant for the case being time barred is that as the details of commission received was disclosed in the Balance Sheet and/or Profit and Loss Account of appellant, which is a public document and the non-payment of service tax on the same was under the bona-fide belief and there was no malafide intent to evade tax. Since undisputedly the service provided by them to Ms/.Enercon (India) Ltd. falls under the category of Business Auxiliary services therefore as per Section 73 of the said Act :- Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of (a) fraud; or ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement of facts. That no service tax was leviable as appellant was not engaged in providing as services on a regular basis and the provision of services as a commission agent was a one off venture. However in this case on going through the facts of the case I find that though there is suppression but still I do not find any intention on the part of the assessee for not paying Service Tax as Commission agent under BAS . Business Auxiliary Service has gone into lot of change from 01.07.2003 and since the services provided in the year 2005-07, there was no of confusion in this period about payment of Service Tax on Commission agent service for which they failed to collect/charge Service Tax from the recipient of Service and there cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onscious or deliberate withholding of information when the manufacturer know otherwise, is required to be established, before saddling the manufacturer with liability for a period beyond one year. Also in the case of Padmini Products vs- CCE [Ref:- 1989 (43) E.L.T. 195 (S.C.), it has been held by Apex Court that mere non-declaration is no sufficient to invoke larger period but some more positive act is required. It was held that mere failure or negligence on part of manufacturer to take license or pay duty in case where there was scope for doubt as to whether goods were dutiable or not could not attract the extended limitation. In this case, the assessee did not obtain excise license under belief that the goods are exempt from duty. There w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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