TaxTMI 
TaxTMI 
2023 (8) TMI 853
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....put services, which was in contravention to the provisions of the Notification ibid. Statements of Shri Chirag P Patel, partner of appellant was recorded. Consequently, it appeared that the Appellant has violated the condition of Notification No. 1/2006 and they are not eligible for availing abatement from the gross value of the service. On scrutiny of documents, it was further revealed that the appellant had received commission income of Rs. 65,873/- for handling railway container rake during the financial year 2010-11. The commission is liable to service tax under the category of "Business Auxiliary Service" under section 65(105)(zzb) of Finance Act, 1994. Accordingly, appellant was issued show cause notice dated 26.02.2013 proposing service tax demand of Rs. 1,79,30,482/- under proviso to Section 73(1) of the Finance Act, 1994 read with Section 68 & 75 of the Finance Act, 1994. It was also proposed for imposition of penalties. The Learned Commissioner, on adjudication, confirmed the demand of Service tax of Rs. 1,68,83,309/- for the period 2008-09 to 2010-2011 under the category of "Transport of Goods by Rail" and Service tax amounting to Rs. 6,785/- on commission amount al....
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....717 -CESTAT, New Delhi 2.3 He further submits that the appellant has discharged the entire liability on commission income through cash payment only. The total cash payment for entire period is more than service tax liability on commission income. 2.4 He also submits that just method of presentation in ST-3 returns or issue of invoice cannot change the nature of services. The nature of services has been clearly defined in the agreement and it remains of mediator / facilitator for procurement of space in railway rack on behalf of the client. In the present matter Ld. Commissioner has accepted the facts that Appellant are just facilitator /mediator for procurement of space in railway rack and appellant have not provided services of transportation of goods by rail as alleged in show cause notice. The demand has been confirmed by the Ld. Commissioner only on the ground of Rule 5 of the Service tax Determination of Value Rules, 2006. 2.5 Without prejudice, he also submits that the Hon‟ble Supreme Court in the case of UOI Vs. Intercontinental Consultants & Technocrats Pvt. Ltd. -[2018] 91 taxmann.com 67 (SC) has held that Rule 5 of Service tax Determination of Value of Rule....
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....ement also for commission income on rail freight. The whole case has been adjudicated only on account of wrong reporting in ST-3 return. However such wrong reporting was due to bonafide interpretation and there was no evasion of tax. He placed reliance on the following judgment: • Hari& Co Vs. Commissioner of Central and Service tax -CESTAT Chennai - order dated 24.04.2023 • M/s Aspinwall and Company Ltd. -Final Order No. 40122 of 2023 dated 07.03.2023 -CESTAT, Chennai 2.8 He also submits that if it is presumed that some of the details were not reported in ST-3 returns as alleged in the show cause notice and order-in-original, just omission of such reporting would not amount to suppression, fraud, willful misstatement etc. For invocation of extended period, mere omission or non-disclosure would not be sufficient. There should be any positive action which suggest that there is any fraud, collusion, suppression, willful misstatement etc., with an intent to evade the payment of taxes. The show cause notice and order in original fails to prove any such action on the part of the appellant which suggest fraud, collusion, suppression, willful misstatement etc.....
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....nd of service tax for the period April 2008 to March 2011 on the ground that the appellant has availed in-eligible benefit of notification No. 1/2006-ST dated 01.03.2006 by discharging the service tax liability by availing Cenvat Credit and paid service tax after availing abatement of 70% of the gross amount. We find from the records and copy of ST-3 produced before us that appellant had been filing the ST-3 returns regularly to the Jurisdictional Range officers. It is on record that the appellant shown all the details in ST-3 returns. We find that Appellant has shown the category of Transport of Goods by Rail services in all the ST-3 returns and has also shown the fact that they were availing Cenvat Credit. In the said ST-3 return, admittedly against the "Column A1 -Name of Taxable Service" Appellant have shown name of service as Goods Transport Agency and Transport of Goods in Container by Rail Service. Further in column 5B appellant have shown the details of Cenvat Credit Taken and utilized. 4.2 It becomes clear from the ST-3 return that the fact that appellant were discharging Service tax on Transport of Goods in container by Rail service and availing Cenvat credit and utili....