TaxTMI 
TaxTMI 
2026 (3) TMI 980
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....invoked) 124/2012 dated 10.04.2012 (Extended Period of limitation is invoked) September 2004 to March 2008 October 2008 to September 2011 ST/40501/ 2016 352/2015 (STA-II), dated 30.11.2015 10/2014, dated 24.07.2014 30/2013 dated 18.09.2013 October 2011 to March 2013 ST/42360/ 2015 220/2015 (STA - II0, dated 25.08.2015 145/2011, dated 14.12.2011 1/2010, dated 05.01.2010 (Extended Period of limitation is invoked) October 2007 to September 2008 2. The brief facts are that the Appellant is a registered service provider of Business Auxiliary Services and is engaged in procuring orders from foreign buyers to Cotton Yarn Mills in India for which activity the Appellant received commission from these mills. The genesis of the present set of Appeals originates in an SCN issued in May 2009 pursuant to the audit of the Appellant during which it was noticed that there is a difference between the taxable income in the ST-3 returns and the income declared in the Balance Sheet. The department appears to have formed the view that the services rendered by the Appellant was leviable to service tax under the category of Business Auxiliary Services (BAS) and that the....
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....sactions. Therefore, the Appellant cannot be called a commission agent in terms of explanation (a) to Section 65 (19). Reliance is placed on the decisions in Inter Ocean Shipping Co. Vs. CST, 2012 (12) TMI 477 - CESTAT, New Delhi. It was contented, without prejudice that the BAS services provided by the Commission agent in relation to sale or purchase of agricultural produce is exempt from service tax under notification no.13/2003 ST dated 20.06.2003. Reliance was also placed on Notification no.14 of 2004 Service Tax dated 10.09.2004 which exempts taxable service in the nature of Business Auxiliary Services in relation to agriculture, printing, textile processing or education. Reliance is placed on the decisions in Madras Security Printers Pvt. Ltd. (2024) 24 Centax 100 (Tri.-Mad), Kishore Apparels Pvt Ltd. Vs. Commissioner of GST & CE Final Order No.41385 /2024 dated 29.10.2024 (Tri.-Mad),Texyard International Vs. CCE (2015) 40 STR 322Arvind A. Traders Vs. CCE (2016) 44 STR 264 (Tri.- Chennai) and Palar Home Textiles (P) Ltd. Vs. CST (2024) 17 Centax 32 (Tri.- Mad.). 4. Ld. Counsel further submits that the denial of Cenvat credit is untenable as these are input services relatin....
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....roposed on the allegation that the Appellant is liable to service tax as a commission agent under "Business Auxiliary Services". The demand on the alleged activities of Business Auxiliary Services has been raised on computing the difference in the taxable income shown in ST-3 returns and the income shown in the Balance Sheet. The Show Cause Notice also has a proposal to deny the cenvat credit availed on input services stating that they are ineligible input services. 10. It is indisputable that Services by their very nature are intangible. Therefore, what exactly is the service rendered and received are best known to the service provider and the service receiver. The Show Cause Notice as well as the Order in Original concedes that the Appellant were filing periodical returns discharging their service tax liability and the Show Cause Notice has proposed the extended period of limitation solely on the allegation that the appellant has realized income as a commission agent which was not brought to the notice of the Department and that the availment of Cenvat credit on ineligible input service was not brought to the notice of the Department. The Order in Original also has been confir....
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...., 1994 under Section 65(19), during the relevant period upto 01-07-2012, defined "business auxiliary service" as under: "(19) "business auxiliary service" means any service in relation to, - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or Explanation.- For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, "inputs" means all goods or services intended for use by the client; (v) production or processing of goods for, or on behalf of the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management o....
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....issued, has invoked the extended period of limitation. 14. Furthermore, the said Show Cause Notice too does not rely on any evidence that would substantiate the allegation that the Appellant has acted on behalf the said M/s. SJLT Textiles, Saravana Spinning Mills. The Appellant had contested the demand stating that they have only given reference of the various textile mills with whom them deal and thereafter it is the marketing personnel of the concerned textile mills who approach the prospective parties and materialize the transaction. In fact, the Appellant's reply to Show Cause Notice and grounds of appeal before the Appellate Authority show that the Appellant has categorically denied that they are acting on behalf of the aforesaid parties and had specifically contended that hence they were outside the ambit of the definition of commission agent. They had emphasized that there was no service provider-client relationship between them and the aforesaid textile mills. We find the reliance placed by the Appellant in this context on the decision in M/s. Interocean Shipping Company v CST, Delhi, 2012 (12) TMI 477-Cestat New Delhi, for its exposition as to the definition of "Commiss....
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....e set aside. 16. We see from the Appeal records of the Appeal ST/40501/2016, that the impugned Order in Appeal No.352/2015 (STA-II) dated 30.11.2015 too has rendered a finding holding that the Appellant are acting as a commission agent for procuring export orders for the manufactured goods, i.e. cotton yarn on many assumptions that do not find a place either in the Show Cause Notice No.30/2013 dated 18.09.2013 or in the connected Order in Original of the Adjudicating Authority. Thus, in addition to the fact that there is no evidence let in to satisfy the fundamental ingredient to consider the Appellant as a commission agent namely that the Appellant is acting on behalf of the principal, the said finding by the Appellate Authority in the impugned order has traversed beyond the Show Cause Notice allegation and contradicts the finding of the Adjudicating Authority in this regard that it seeks to uphold, thereby rendering the impugned order unsustainable on these counts. We also find that the Appellant has rightly contended that the Show Cause Notice No.30/2013 dated 18.09.2013 has not put the appellant to notice of the relevant statutory provisions post 01-07-2012 in order to susta....
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....Res judicata pro ventate accipitar - A matter adjudged is taken for truth. A matter decided or passed upon by a court of competent jurisdiction is received as evidence of truth". - (Black's law Dictionary)." In any event, there is no evidence of any positive act of wilful suppression or misstatement of facts with intent to evade payment of duty let in in the show cause notice. In light of the ratio of the decisions in CCE v. H.M.M. Ltd, 1995 (76) ELT 497, Pushpam Pharmaceuticals Company v CCE, Bombay, 1995 (78) ELT 401 (SC) and Uniworth Textiles v CCE, Raipur, 2013 (288) ELT 161 (SC), we hold that the Department has erred in invoking the extended period of limitation and the demand is in any event wholly barred by limitation. Given our aforesaid findings in favour of the appellant on limitation, even though ex facie, the contentions on merits urged in the alternate too appear to be in favour of the appellant, we are not addressing the same. Resultantly, the impugned Order in Appeal No. 220/2015 (STA - II0, dated 25.08.2015 is unsustainable and liable to be set aside. 18. In as much as we have found the impugned orders in all these Appeals are unsustainable and liable to be set a....