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TMI Blog2019 (1) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... s not payable by such individual - reliance placed in the case of PRATAP SINGH JYALA VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (12) TMI 819 - CESTAT NEW DELHI] - appeal allowed - decided in favor of appellant. - Appeal No.ST/567/2010-DB - A/10026/2019 - Dated:- 2-1-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) For Appellant: Mr. Vipul Khandhar (Chartered Accountant) For Respondent: Mr. S.K. Shukla (AR) ORDER Per: Ramesh Nair The brief facts of the case are that the appellant is a Non-Resident Indian providing service of Commission Agent to Indian Service Recipient i.e. Amway Enterprise in USA. The service tax demand was confirmed against the appellant. The following issues aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant being proprietorship is exempted from payment of service tax in terms of Notification No. 14/2004-ST dated 10.09.2004. On all these counts, the demand is not sustainable on the appellant. 4. Shri. S.K. Shukla, Ld. Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 5. We have carefully considered the submissions made by both the sides and perused the records. We find that there is no dispute that the appellant is an individual NRI in USA. During the relevant period this Tribunal has given various judgments wherein it was held that an individual and / or proprietorship concern is not considered as a commcerial concern, therefore, the service tax under BAS is not payable by such in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion on the part of the appellant that appellant being a commercial concern suppressed the fact from the department not to pay the Service Tax. In these circumstances, I hold that appellant is required to pay Service Tax for the period 2004-2005 and 2005-2006 under the category of Business Auxiliary Service being an individual by invoking extended period of limitation. 7. Therefore, impugned order is set aside. Appeal is allowed with consequential relief, if any. In case of Beena Goyal, this Tribunal observed as under: 11. In view of the Ministry s clarification Circular No. 80/10/2004-S.T., dated 17-9-2004, I agree with the contention of the appellant that during the relevant period there was no intention to levy tax on propr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (A) or the original adjudicating authority which is based upon boards circular and the precedent decisions. 7. Apart from the merits we also note that the lower authorities have rightly explained the benefits to the respondent on the issue of time bar. Admittedly, during the relevant period there was a lot of confusion. All the activities undertaken by the appellant were a part of the reflection made in the balance sheet and income tax return in which case no suppression or mala fide can be attributed to the assessee. Revenue has not been able to produce any evidence on record to show that the tax which according to the revenue was payable was not being paid on account of any mala fide. As such we agree with the lower autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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