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TMI Blog2023 (6) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay service tax on the services rendered by them to M/s Forever Living Products Pvt. Ltd. before and after 01.06.2005. Extended period of limitation - HELD THAT:- In the facts and circumstances of the case that the appellants have not obtained any registration and have not paid the applicable service tax. The appellants have not disclosed the material facts of providing taxable service under the category of Business Auxiliary Service to M/s Forever Living Products Pvt. Ltd. on their own and the Department came to know about the activity only after conducting certain inquiries. Therefore, there is suppression of material fact on the part of the appellants. Therefore, extended period is rightly invokable. Imposition of penalties under Section 76 and Section 78 - HELD THAT:- Hon ble High Court of Punjab Haryana in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. PANNU PROPERTY DEALERS, LUDHIANA [ 2010 (7) TMI 255 - PUNJAB AND HARYANA HIGH COURT ] observed that simultaneous penalty cannot be imposed under Section 76 and Section 78 - Moreover, in the instant case, the appellants have paid the duty along with interest and 25% of value as penalty on 06.05.2010 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to business auxiliary service. 3. He submits that Tribunal in the case of Mangal Singh Vs CCE- 2008 (11) STR 17 (T) held that individual is not a commercial concern and thus does not come under the purview of service tax. He further submits that the Adjudicating Authority did not extend the benefit of input service tax credit of Rs. 7,817/- on telephones etc. He further submits that there was no wilful suppression of facts and intent to evade payment of Service Tax and therefore extended period cannot be invoked as held by the Hon ble Supreme Court in the case of Cosmic Dye Chemicals Vs CCE- 1995 (75) 721 (SC) intent to evade payment of duty has to be proved and mere mis-statement or suppression of fact is not enough; CESTAT in the case of K.K. Appachan Vs CCE- 2007 (7) STR 230 (Tri. Bang.) held that larger period of limitation cannot be invoked when the issue relates to interpretation of law. 4. Learned Counsel further submits that the Adjudicating Authority erred in imposing penalty under Section 76 and Section 78; Hon ble Punjab Haryana High Court in the cases of Pannu Property Dealers- 2011 (24) STR 173, First Flight Courier Ltd.- 2011 (22) STR 622 and City M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants who rendered Business Auxiliary Services as a proprietor can be treated to be a commercial concern before 01.06.2005 also. The appellants rely upon the decision of the Tribunal in the case of Mangal Singh (supra) whereas the Department relies on various decisions which were subsequently passed. We find that Tribunal in the case of Charanjeet Singh Khanuja (supra) is observed as follows: 14. Another objection raised by the appellants in Appeals Nos. ST/138 and 139/2009, ST/406/2010, ST/522 to 525/2010, ST/257, 259, 433, 473, 502, 580, 1123, 1383, 1781 1802/2011, ST/56, 86, 126, 645/2012 and ST/1723-1724, 2337 and 2810/2012 and the respondents in Appeals Nos. ST/851 to 854, 863, 864, 865, 866, 867, 868, 869, 870 and 878/2012 is that the assessees are individuals and during the period till 30-4-2006, Service tax was chargeable only on the services provided to a client by a commercial concern in relation to Business Auxiliary Service and the individual persons cannot be treated as Business concern. We do not accept this plea as a business concern can be a proprietary firm also which is owned by an individual and there is no difference between proprietary firm owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this extent, we find that the appellant s arguments are not acceptable. We find that the appellants are liable to pay service tax on the services rendered by them to M/s Forever Living Products Pvt. Ltd. before and after 01.06.2005. 10. Coming to the invocation of extended period, we find that learned Authorized Representative relies on in the case of Dharmpal Satyapal (supra) wherein Hon ble Apex Court observed as follows: 22. It was urged that the assessee was under a bona fide impression that no duty was leviable on the goods; the full quantity of disputed goods was used captively and, therefore, proforma credit/Modvat credit was available in respect thereof and, therefore, there was no intent to evade payment of duty. In support of the aforestated submissions, it was urged that suppression or breach of rules by itself would not amount to intention to evade, that some positive act of deliberate suppression or breach of rules was required to be shown by the department; that, if the assessee showed that credit available to it was equal to the demand then there may not be the case of intention to evade payment of duty, In this connection, reliance was also placed on the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee to explain its failure to maintain the records under the 1944 Act and rules thereunder. In each of the above decisions, we find that there was substantial compliance of the rules under the said Act. In each of the decisions the findings indicate technical non-Service compliance and not total non-compliance of the rules. It was for the assessee to explain the basis of its alleged bona fide impression. In this connection, no evidence was put before the commissioner about receipt and utilization of the compound in the manufacture of Tulsi Zafrani Zarda. No evidence was led to show that the amount of proforma/modvat credits was equal to the duty demanded, although it was urged that after 3/94, the liability to duty on inputs stood shifted to the final product. 11. As brought out by the Revenue, we find in the facts and circumstances of the case that the appellants have not obtained any registration and have not paid the applicable service tax. The appellants have not disclosed the material facts of providing taxable service under the category of Business Auxiliary Service to M/s Forever Living Products Pvt. Ltd. on their own and the Department came to know about the activi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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