2019 (1) TMI 379

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....Whether appellant being NRI agent liable to pay service tax or recipient of service is liable for the service tax. 2. Whether demand of service tax under the BAS is sustainable or not. 3. Whether appellant as an Individual provided a service to a client can be termed as commercial concern or not. 4. Whether appellant is eligible for the SSI exemption vide notifn. No. 5/2005 w.e.f. 01.04.2005 or not. 5. When appellant had interpretation difference and classification dispute, whether extended period can be invokable or not. 6. Whether penalty can be imposable or not. 2. Sh. Vipul Kandhar, Ld. C.A. appearing on behalf of the appellant submits that the appellant is an NRI and staying in USA and he does not have office or estab....

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....vidual. In the case of Pratap Singh Jyala (supra) this Tribunal observed as under: "6. I have gone through the case law relied by learned AR in the case of Employ Me. The definition has been taken as the commercial concern which indicate that the concern is engaged in the activity with profit motive. The said meaning has not defined if the individual is engaged in the activity of profit then same can be called as commercial or not. Therefore, said case law is not relevant to the facts of the present case. As in the case of Laxmi Engineering Works (supra), the Hon'ble Apex Court has treated the commercial concern as sole proprietorship. The said case is not applicable to the facts of the present case as appellant is not a proprietorship c....

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....oncern under the category of "Business Auxiliary Service". So I set aside the demand under this category. Once the argument is accepted the penalty under Section 77 is not maintainable because it is imposed for not taking registration under Business Auxiliary Service. 12. I am not in agreement with the argument that there was no suppression of information because in a computerized environment there is no scope of making a mistake of the type claimed and it is obvious that the value was misdeclared for paying tax. However I take note of the decision of the Punjab and Haryana High Court in the case of CCE v. City Motors - 2010 (19) S.T.R. 486 (P & H) and hold that there is no case for imposing penalty under Section 76 and Section 78 in thi....