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TMI Blog2018 (4) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... e department would issue periodical show cause notices till the matter is finally settled. There is no evidence that this has been done. The appellants were continuing to function under an agreement which was identical to the earlier one when department had demanded tax liability from them under C&F service. This being so, Department should have continued to issue protective periodical show cause notice on the very same C&F service. This was not done. Time limitation - Held that: - the department cannot wash away the fact that they were well aware of the continued activities of the assessee under the very same terms and conditions which they had been pursuing earlier. This being so, the initiation of the present proceedings after a ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de order reported in 2010 (17) STR 235 (Kar.), inter alia, holding that the assessee could not be considered only as commission agent as the agreement was that of a consignment agent, hence the assessee was liable to pay tax as Clearing and Forwarding Agent. Pursuant to the Tribunal s order, the assessee surrendered the registration under Clearing and Forwarding Agent on 2.7.2004. Subsequently, they obtained a fresh service tax registration on 30.7.2004 as commission agent under Business Auxiliary Service and started paying tax under the said category with effect from 9.7.2004. Department took the view that assessee should have paid the service tax for the earlier period 1.9.2003 to 8.7.2004 also and under category of Business Auxiliary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny element of commission agent as envisaged in the statutory definition, therefore the exemption under the Notification cannot be extended to its case. It has further noted that the appellants activities contain the service ingredients of Business Auxiliary Service as taxable with effect from 1.7.2003. 2.2 The impugned order has rejected the appellant s submission of being a commission agent in paragraph 27 by holding that the noticee is not functioning exclusively as a commission agent, but is simultaneously functioning as a consignment agent / C F agent, which is part of BAS. 2.3 However, through the entire proceedings, the show cause notice and the impugned order has not made any effort to classify the appellants activities under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality with the Hon ble High court of Karnataka. However, even while the said matter was pending, department has initiated the present proceedings demanding tax liability under BAS for the period 1.7.2003 to 8.7.2004. Therefore, the entire matter being known to the department, the present proceedings are hit by limitation. 3. On the other hand, ld. AR supports the impugned order. He also takes us to paras 29 to 31 of the impugned order to point out that the adjudicating authority cannot take the plea that show cause notice was issued against them under C F agent service. The ld. AR also submits that for the period of dispute, Notification No. 13/2003-ST exempted only services provided by commission agent. However, the assessee cannot be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility for the period from1.7.2003 when BAS was introduced till 8.7.2004 when Notification No. 13/2003-ST outlived its existence in respect of the assessee. 6. From this factual matrix, what we are able to glean is that the appellants were continuing to function under an agreement which was identical to the earlier one when department had demanded tax liability from them under C F service. This being so, Department should have continued to issue protective periodical show cause notice on the very same C F service. This was not done. On the other hand, it is evident that the department got its wake up call only when the appellant started discharging tax liability as commission agent. 7. In such circumstances, the department cannot wish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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