TaxTMI 
TaxTMI 
2017 (8) TMI 836
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....agent. After getting accredited to IATA in 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 da....
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.... • The option is to be exercised during the financial year • There is no condition 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....
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....ways willing to discharge service tax on basic fare which was not acceptable by department. As there was already earlier show cause notice issued invoking extended period, the second show cause notice alleging 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 ....
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....he option, once exercised, shall apply uniformly in respect of all the bookings of passage for travel by air made by him and shall not be changed during a financial year under any circumstances. Explanation - For the 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. Wh....
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....ore the second show cause notice issued on the same set of facts is not sustainable. We do find that the earlier show cause notice is issued for the period from October 2002 to September 2003. In the case of Nizam Sugar 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 argu....