TaxTMI 
TaxTMI 
2017 (8) TMI 836
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.... October 2002, they failed to discharge service tax and show cause notice was issued for the period 10/2002 to 9/2003 and after adjudication, Order-in-Original dated 24.2.2005 was passed confirming demand of service tax of Rs. 2,54,770/- and imposing penalty of Rs. 5,500/-. The appellants paid these amounts. In appeal, the same was confirmed vide Order-in-Appeal 30.8.2005. Though department filed appeal before Tribunal against reduced penalty the same was dismissed. 3. The appellant did not discharge service tax for the period October 2003 to September 2005, and alleging that appellants cannot discharge service tax on the basic fare but have to pay on the commission received, show cause notice dated 4.10.2006 was issued. After due process ....
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....on that the option shall be exercised at the beginning of the year. * There is no specific form in which the option is to be exercised. * Hence if the payment is made on the basic fare basis and ST3 return also evidences that, it is to be treated as sufficient compliance of having exercised the option. * Once the option is exercised it remains till such time the service provider opts Out of the same. 2.1, b) Factual Position: * ST 3 Return for the period October 2002 to September 2003 was filed working out the service tax liability on basic fare method, thereby exercising option provided under rule 6(7) of the service tax rules 1994. * The same was not accepted by the Department for the reason that such options cannot be exercis....
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....g suppression on same facts is not sustainable. 5. Against this the Ld.AR, Shri A.Cletus submitted that the appellant did not pay service tax and did not file ST-3 returns even after the first order passed by them and that therefore there is suppression of facts. Without filing returns, the department would not be able to know the facts. He submitted that appellants are liable to discharge service tax on the commission received and as they have not filed any intimation to the department informing the option exercised they are liable to pay service tax on the basis of the commission. The quantification is therefore right and proper. The show cause notice issued invoking extended period is sustainable as well as penalties. 6. Heard both sid....
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.... purposes of this sub-rule, the expression "basic fare" means that part of the air fare on which commission is normally paid to the air travel agent by the airline." 8. From the above, it can be seen that there is no procedure contemplated in the provision to intimate the department regarding the option exercised. The main reason for disallowing such option to pay service tax on the basic fare, as revealed from the impugned order, is that the appellant has not intimated the department with regard to the exercise of option. When no procedure is contemplated for such intimation, the option exercised by the appellant which is revealed from the service tax returns filed by them cannot be denied. The conduct of the appellant in filing ST-3 retu....
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....Factory (supra) has held that allegation of suppression of facts cannot be sustained when the first show cause notice was issued on the same set of facts and these were within the knowledge of the authorities. Apart from this, we do take note that internal audit was conducted and as per report dated 13.10.2005, the appellants were asked to pay service tax for the period from October 2003 to September 2004 to the tune of Rs. 8,35,876/- which was collected by them on the basis of basic fare. The learned AR has opposed the arguments posed by learned counsel on the ground of limitation and contended that the appellant has not filed ST-3 returns or paid the service tax collected by them. This is countered by the learned counsel for the appellant....