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TMI Blog2017 (12) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... transporters. Business Auxiliary Services - case of appellant is that the BAS should be provided to a client and the transporter is not a client - Held that: - as the service has been provided by the appellant to transporter who is a service provider therefore the above contention of the appellant is not tenable - reliance placed in the case of Union of India & Ors. Versus M/s Martin Lottery Agencies Ltd. [2009 (5) TMI 1 - SUPREME COURT OF INDIA], where it was held that Service tax purports to impose tax on services on two grounds (1) service provided to a customer and (2) service provided to a service provider - the service tax has been correctly charged in the category of BAS. Extended period of limitation - Held that: - the infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended period was upheld. The adjudicating authority also upheld the penalties under Sections 77 and 78 of the Act. However, the adjudicating authority granted them the benefit under Section 80 of the Finance Act, 1994 holding that the appellant had bonafide belief and there was reasonable cause for failure to pay service tax. Aggrieved from the said order, the appellant went in appeal. The Commissioner (Appeals) rejected the appeal. Aggrieved from the same, the appellant have this appeal. 2. Ld.Advocate for the appellant submits that the assumption made by the Revenue that certain amount paid by the transporters to the appellant for promoting business is not tenable in law as there is no contract between the parties with the regard to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsibility/obligation arising during the transit from place of manufacture to place of delivery. They being manufacturer of fabric, have certain regular customers, who authorize them to arrange transportation on their behalf. In such cases, they identify transporters and negotiate the freight with the transporters on behalf of the buyers. They are representative of the buyers, as the goods are sold in these transactions are on Ex-Mill basis and they do not have any kind of responsibility in regard to transit of goods upto place of delivery. It is clear from the statement of Shri Rakesh Sharma in para 4 of the show cause notice that the amounts have been received by them in lieu of quantity of business value arranged by them for the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of Section 80 of the Finance Act,1994 on the following grounds: .......I find that apparently the default has occurred because the amounts were recorded in their accounts as on account of renegotiated freight. I find that there was reasonable cause for their failure to pay tax. Accordingly, I grant them benefit under Section 80 of the Finance Act, 1994 which stipulates that no penalty should be imposed under Section 76, 77 or 78 of the Finance Act, 1994. 7. Even though, in the preceding paragraph, the adjudicating authority has mentioned that the information with regard to charging of amount of the given service and activity was never brought to the notice of the department by way of periodical returns or otherwise. Nev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extended period is not invocable in this case. 7. It is also seen that the adjudicating authority categorically stated that it was not possible to check each and every entry running into thousands and then summarily went ahead and confirmed the impugned demand. It is to mention that once the appellant contended that the demand raised was untenable because the difference between the figures of their ledger and in their ST-3 returns was for the reason mentioned earlier, a clear finding was required to be given by the adjudicating authority instead of brushing it aside on the ground that it was not possible to verify their claim. 8. In view of the foregoing we set aside the impugned order and remand the case to the original adj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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