2019 (3) TMI 114

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....ns in airlines/ships and paid the charges for the same. As and when the clients bring cargo for dispatch, the appellants collect freight charges for the transportation of the goods. While charging their customers towards such freight charges, the appellants bill/collect extra charges in excess of the charges paid to the airlines/ships. 3.1 The Department took the view that the said services appear to be classifiable under Business Auxiliary Services (BAS) as defined in Section 65(19) of the Finance Act, 1994. It appeared that for the period from October 2004 to December 2008, an amount of Rs. 2,14,63,001/- was payable on this service, which had not been discharged by the appellant. It further appeared that the appellant had not paid servic....

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....ppellants inter alia proposing demand of an amount of Rs. 39,71,783/- as service tax liability payable on Business Auxiliary Service for the period from April 2009 to March 2010 and also proposed demand of interest and imposition of penalty under relevant provisions of law. 4.3 In adjudication, the Commissioner vide impugned Orders 34 and 35/2011 dated 29.12.2011 confirmed the demand of the following amounts : I. With respect to Show Cause Notice dated 05.04.2010 : (i) Demand of Rs. 1,92,04,675/- payable on Business Auxiliary Service; (ii) Demand of Rs. 17,86,986/- in respect of non-receipted expenses and commission received; (iii) Demand of interest on the above amounts; (iv) Appropriation of the amounts already paid by the assessee....

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....ice tax on such freight charges under Business Auxiliary Services is unjustified. II. In respect of the demand of Rs. 15,53,701/- with interest on excess charges : (i) The said demand with interest has been paid up voluntarily by the appellant during the Department audit. Ld. Consultant submits that the appellant is not contesting the said demand; (ii) However, it is submitted that there cannot be any penalty in this case since the amount was already paid up on being pointed out; (iii) Further, even on law, the matter is covered by the Supreme Court's judgement in the case of Union of India Vs. M/s. Intercontinental Consultants and Technocrats Pvt. Ltd. - 2018 (10) G.S.T.L. 401 (S.C.). III. In respect of the demand of Rs. 2,33,285/- ....

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....The adjudicating authority, after careful analysis, has found that the appellant had not disclosed the details of entire income either in the ST-3 returns filed by them or in any other communication and had therefore suppressed the facts with an intention to evade payment of service tax; (ii) Hence, even though they have paid up the tax liability, the penalty under Section 78 ibid will still be attracted. III. In respect of the demand of Rs. 2,33,285/- on commission received from steamer agents/airlines : (i) Ld. AR reiterates the observations of the adjudicating authority in paragraph 16.0 of the impugned Order. 8. Heard both sides and have gone through the facts. 9. We intend to take up the issues one by one. I. In respect of the d....