9911796707
TMI Blog2018 (6) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as Business Auxiliary Service and the service tax liability would arise - demand of service tax liability with interest upheld. Extended period of Limitation - Held that:- Since the appellant failed to take any registration/certificate the service tax, demand for the extended period is correctly confirmed. Penalty u/s 76 and 78 - Held that:- Since, the demand of service tax liability which is confirmed under Proviso to Section 73 of the Finance Act, 1944, is upheld, the equivalent amount of penalty under Section 78 gets attracted - penalty under Section 76 need not be imposed as both the penalties u/s 76 and 78 are not to be imposed. The service tax liability with interest and equivalent penalty under Section 78 is upheld, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice on limitation as well as on merits. The Adjudicating Authority as well as First Appellate Authority relied upon the decision of the Tribunal in the case of Rashtriya Ispat Nigam Ltd., [2005 (179) ELT 65] wherein the Bench came to a conclusion that activity of bending, cutting and straightening does not amount to manufacturing hence the service tax liability arises under Business Auxiliary Services. On limitation both the lower authorities held that appellant having not obtained registration is correctly taxed by invoking the extended period. 4. Learned Consultant submits, the issue involved in this case is whether the appellant activity would not fall under the category of Business Auxiliary Service or as they are not provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this activity would be covered under the Business Auxiliary Service. In order to understand the issue we reproduce the definition of Business Auxiliary Service during the relevant period, which reads as follows: Any service in relation to, - i) Promotion or marketing or sale of goods produced or provided by or belonging to the client; or ii) Promotion or marketing of service provided by the client; or iii) Any customer care service provided on behalf of the client; or iv) Procurement of goods or services, which are inputs for the client; or v) Production or processing of goods for, or on behalf of, the client; vi) Provision of service on behalf of the client; or vii) A service incidental or auxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take any registration/certificate the service tax, demand for the extended period is correctly confirmed. We uphold the service tax liability and interest thereof. 7. As regards the penalty since, we uphold the demand of service tax liability which is confirmed under Proviso to Section 73 of the Finance Act, 1944, equivalent amount of penalty under Section 78 gets attracted. We hold that penalty under Section 76 need not be imposed as judgement of the Hon ble High Court of Gujarat in the case of Raval Trading Company [2016 (42) STR 210 Guj.] in para. 11 12 has held that both the penalties are not to be imposed, more specifically after the provisions in Section 78 of the Finance Ac, 1944. We reproduce the said ratio in para. 11 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereunder with an intent to evade the payment of service tax, the person liable shall in addition to service tax and interest also be liable to pay penalty not exceeding ten per cent of the amount of such service tax. Thus, by way of this amendment, the statute has ensured that Sections 76 and 78 of the Finance Act, 1994, apply in mutually exclusive areas. In other words, the cases of non-payment of tax by reason of fraud or collusion or wilful misstatement or suppression of facts, etc., would be covered under Section 78 of the Finance Act, 1994, and all cases other than those envisaged under Section 78 would be covered under Section 76 of the Finance Act, 1994. 8. In view of the foregoing, the service tax liability with interest and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
