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TMI Blog2017 (12) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... ler of M/s Maruti for sale of cars and are also helping the customer in pursuing the loan from the finance companies who has tie up with M/s Maruti for financing of cars. The Appellant in turn are getting commission for such Auto loan procured by them. Vide Show Cause Notice dt 13.12.2006 it was alleged that the Appellants activity is of "Business Auxiliary Service" sand the income arising therefrom is liable to service tax. A demand on account of incentives was also raised. Accordingly demand for the period July 2003 to March 2006 was raised upon the appellant alongwith proposal to impose penalty under section 76 and 78 of the Finance Act, 1994. The adjudicating authority dropped the demand in respect of sales incentive and in respect of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck to the Tribunal to look into penalty aspect only. The penalty imposed under section 76, 77 and 78 are completely arbitrary and untenable hence require to be set aside as the ingredients of the said section are not attracted in the present case. There was considerable doubt regarding the aforesaid activity as not falling under Business Auxiliary service and it was held by the Tribunal in which the identical activity was held to be falling under Business Auxiliary service. The records of the present case shows that there was bonafide belief prevailing in the trade that no service tax was payable. That even the Board issued circular dt. 06.11.2006 clarified that the services are liable for service tax. In respect of their units in Kolhapur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state that all such orders were on similar set of facts and circumstances which also needs to be considered. We find that though the Appellant had contested demands before the Hon'ble Supreme Court but the same was maintained by the Hon'ble Apex Court including the demands of extended period. The demands of the extended period can be invoked only when there is ingredients of fraud, suppression or malafide intention on the part of the assessee for non-payment of tax. On the other hand the penalty can be waived only by taking recourse to section 80 of the Act which reads as under : Section 80 - Penalty not to be imposed in certain cases. (1) Notwithstanding anything contained in the provisions of section 76, section 77 or section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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