9911796707
TMI Blog2023 (5) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... onal assistance in such marketing. No such words were used in the terms of the agreement and in fact the agreement directly refers to the appellant as a service provider to mark its products (ICICI Bank) and the appellants are in fact engaged in promotion and marketing activity of the financial products of the client bank. The aforesaid decision of the Tribunal was confirmed by the Delhi High Court in the appeal filed by the Department in COMMISSIONER OF CENTRAL TAX GST DELHI EAST VERSUS TEAM HR SERVICES LTD. [ 2018 (10) TMI 406 - DELHI HIGH COURT] . The observations made by the Delhi High Court dismissing the appeal filed by the Department against that part of the order of the Tribunal holding that the extended period of limitation could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has pointed out that earlier a show cause notice dated 28.7.2008 was issued to the appellant for the period from 01.07.2003 to 31.03.2005 raising a demand for service tax under BAS on the same grounds as are contained in the present show cause notice dated 19.10.2010 and though the order passed by the Commissioner was confirmed on merits by the Tribunal for the normal period of limitation, but the demand confirmed for the extended period of limitation was set aside. It has therefore, been contended by the learned counsel for the appellant that as the entire demand raised in the show cause notice is beyond the extended period of limitation, the order passed by the Commissioner deserves to be set aside. 4. Shri Harshvardhan, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself will not make the activities of service provider as other than marketing service of the product. "Business Auxiliary Service" as defined clearly states that any service in relation "promotion or marketing of service provided by the client" shall be liable to tax. Having perused the terms of the agreement extensively, we have no doubt that the appellant did market the services provided by the client bank. It will not be correct to state that the appellant only provided operational assistance in such marketing. No such words were used in the terms of the agreement and in fact the agreement directly refers to the appellant as a service provider "to mark its products (ICICI Bank)". In fact Clause 9.3 read with Clause 8.1 makes it apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen from para 1 of the said decision. However, reliance placed by the said decision on the decision in S.R. Kalyanakrishnan (supra) appears to be not factually applicable. Without further commenting on the merits of the said decisions, we are only concerned with possibility of certain interpretation during the time. These factors lead us to conclude that the appellants cannot be put to tax liability and penalty by invoking provisions like suppression of fact, misrepresentation with intent to evade payment of service tax in terms of proviso to Section 73(1) of the Act. We note that the present proceedings are initiated after audit of the records of the appellant during the month of July, 2006. The demand for extended period and penalties w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from 2003 and "business support services", which was a fresh levy introduced w.e.f. 1-5-2006. Concededly, the assessee was filing his assessment returns after 1-5-2006 when business support service was introduced. 6. In these circumstances, the mere advertence to the possibility of service tax - without any material or evidence - or even a finding that such service tax had been collected by the assessee during the past, cannot per se amount to a conclusion that it had practiced fraud or misrepresentation. It has been repeatedly emphasized by the Supreme Court in Uniworth Textiles Ltd. v. Commissioner of Central Excise, 2012 (9) SCC 753 = 2013 (288) E.L.T. 161 (S.C.), Pushpam Pharmaceuticals Co. v. Commissioner of CE, 1995 Supp. (3) SC ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
