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TMI Blog2008 (4) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri A. Gopal Kanakaraj, Consultant, for the Appellant. Shri N. J. Kumaresh, SDR, for the Respondent. [Order] -1. The assessee's appeal is against demand of service tax of Rs.74,182/- for the period 1-7-2000 to 31-3-2003, interest on tax amounting to Rs.10,611/- and penalties imposed under S 76 and 78 of the Finance Act, 1994 amounting to Rs. 10,000/- and Rs. 35,343/- respectively. The Revenue's appeal is against reduction of the Section 76 penalty to Rs. 10,000/-. 2. After examining the records and hearing both sides, I note that, during the above period, the assessee had, on commission basis, received goods from a Mumbai-based manufacturer, sold it to buyers on behalf of the manufacturer, transmitted the sale pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of Rs. 19,098/- immediately. 3. M/s. GD is directed to pay interest at the appropriate rates on the amount of service tax at (1) above, as per Section 75 of the Finance Act, 1994. 4. I appropriate an amount of Rs. 10,611/- paid by them on various dates towards interest on delayed payment. They are directed to pay the balance interest immediately. 5. I impose a penalty of Rs. 35,343/- under Section 76 of the Finance Act, 1994 for the delayed payment of service tax during the period from 1-4-2000 to 30-6-2002. 6. I impose a penalty of Rs. 35,343/- under Section 78 of the Finance Act 1994, for suppressing the date of commencement of service and value of taxable service for the period from 1-4-2000 to 30-6-2002 as discussed abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Medpro Pharma case (supra) was followed and a consignment agent who was found to have carried out sale of goods on behalf of the principal was classified as C F Agent for service tax purpose. 5. Learned consultant has raised another contention, which is to the effect that it was not open to the department to reopen the assessment already approved, by way of issue of show-cause notice. Ostensibly in support of this case, consultant has relied on Hon'ble Madras High Court's decision in Deputy Commissioner (C.T.), Coimbatore v. Indian Refrigeration Industries Pvt. Ltd. [1980 (46) STC 264], wherein it was held that a reassessment order was also an assessment order which was amenable to challenge. 6. I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Business Auxiliary Service . The period of dispute in the present case is also prior to that date and, therefore, the case law cited by learned SDR would squarely apply to this case. The Hon'ble High Court's decision cited by learned consultant does not appear to be relevant to the facts of this case. Admittedly, the assessee had filed service tax returns, albeit belatedly, in this case, but those returns had returned only the amounts received as commission from the principal. The reimbursed expenses were not returned. The department was very much within their right to demand the tax which escaped assessment and this was precisely what they did by issue of the show-cause notice. 7. In the result the assessee's appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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