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TMI Blog2017 (12) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Shri V.M. Radhakrishnan - Held that: - The documents placed require verification and for this limited purpose, matter is remanded to the adjudicating authority. Penalty u/s 76 and 78 - Held that: - It is clear that the appellant was holding a bonafide belief that they are not liable to pay service tax. In fact, they had discharged the service tax other than the amount of commission received by Shri V.M. Radhakrishnan - the appellant has put forward a reasonable cause for not discharging service tax liability and there is sufficient ground to invoke section 80 of the FA, 1994 - penalty upheld. Appeal allowed in part and part matter on remand. - ST/523/2009 - Final Order No.43088/2017 - Dated:- 7-12-2017 - Ms. Sulekha Beevi C.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received. The appellant had received commission to the tune of ₹ 84,63,559/- for the period 9.7.2004 to 31.7.2006 for the services rendered to M/s. APR Packaging Ltd., a unit of M/s. Ballarpur Industries Ltd. and ₹ 2,65,676/- to other parties respectively. Statements were recorded. Show cause notice dated 10.1.2008 was issued for the demand of service tax along with interest and also proposing to impose penalties. After due process of law, the original authority confirmed the demand of ₹ 8,88,712/- along with interest and appropriated the amount already paid by the appellant and imposed penalties. Aggrieved, the appellants filed appeal before Commissioner (Appeals) who rejected the appeal. Hence this appeal. 3. On behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit to the tax demand for the said period. (c) The ld. counsel has also argued that immediately on being pointed out, the appellant had paid the service tax with respect to the commission received by them and had not discharged the service tax liability only with regard to the commission pertaining to Shri V.M. Radhakrishnan. That they were under bonafide belief that they are not liable to pay service tax on this amount and that there was no intention to evade payment of service tax. He therefore pleaded that the penalties may be set aside. 4. The ld. AR Shri B.Balamurugan reiterated the findings in the impugned order. He referred to the documents produced by the appellant evidencing payment of service tax by Shri V.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberately suppressed the facts and therefore the penalties imposed are legal and proper. 5. Heard both sides and perused the records. 6. The main contention of the appellant is that out of the total commission amount of ₹ 87,29,235/-, an amount of ₹ 47,11,000/- pertains to commission received by Shri V.M. Radhakrishnan who was the sub-agent for rendering BAS for M/s. Ballarpur Industries. That part of commission pertaining to the BAS rendered by the appellant for M/s. Ballarpur Industries Ltd. would be only ₹ 38,24,070/- and the service tax payable would be ₹ 3,90,831/-. That the appellant has discharged service tax to this extent. Shri V.M. Radhakrishnan has discharged service tax of ₹ 4,67,555/- on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 2004. (Emphasis supplied) 7. Thus, it can be seen that the appellant has claimed that they are eligible for CENVAT credit on the service tax paid by Shri V.M. Radhakrishnan for the commissions paid by the appellant to him. In that case, the services rendered by Shri V.M. Radhakrishnan is an input service for appellant. If this is to be accepted then the case of appellant that part of the commission pertains to Shri V.M. Radhakrishnan is incorrect. We therefore reject the first argument of the appellant. We hold that the appellant is liable to pay the service tax on the entire commission received by him. 8. The ld. counsel has pleaded that the appellant would be eligible for CENVAT credit of the service tax paid by Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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