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2023 (6) TMI 306 - CESTAT CHANDIGARHLevy of Service Tax - Business Auxiliary Service - appellant is individual or a commercial concern? - whether the appellants who rendered Business Auxiliary Services as a proprietor can be treated to be a commercial concern before 01.06.2005 also? - extended period of limitation - penalties - HELD THAT:- Tribunal in the case of MR. CHARANJEET SINGH KHANUJA AND OTHERS VERSUS CST, INDORE/LUCKNOW/JAIPUR/LUDHIANA AND OTHERS [2015 (6) TMI 585 - CESTAT NEW DELHI] has held that When an individual engages himself in a commercial activity, he has to be treated as business or commercial concern. Therefore, notwithstanding the fact that w.e.f. 1-5-2006 the term, 'commercial concern' in Section 65(105)(zzb) was replaced by any person', we are of the view that even during the period prior to 1-5-2006, the Business Auxiliary Service, even if provided by an Individual to a client, was taxable. Thus, commercial concern covers individuals also when they are into a business and to this extent,t the appellant’s arguments are not acceptable. The appellants are liable to pay service tax on the services rendered by them to M/s Forever Living Products Pvt. Ltd. before and after 01.06.2005. Extended period of limitation - HELD THAT:- In the facts and circumstances of the case that the appellants have not obtained any registration and have not paid the applicable service tax. The appellants have not disclosed the material facts of providing taxable service under the category of “Business Auxiliary Service” to M/s Forever Living Products Pvt. Ltd. on their own and the Department came to know about the activity only after conducting certain inquiries. Therefore, there is suppression of material fact on the part of the appellants. Therefore, extended period is rightly invokable. Imposition of penalties under Section 76 and Section 78 - HELD THAT:- Hon’ble High Court of Punjab & Haryana in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. PANNU PROPERTY DEALERS, LUDHIANA [2010 (7) TMI 255 - PUNJAB AND HARYANA HIGH COURT] observed that simultaneous penalty cannot be imposed under Section 76 and Section 78 - Moreover, in the instant case, the appellants have paid the duty along with interest and 25% of value as penalty on 06.05.2010 and looking into the provisions of Section 80 of the Finance Act, the penalties imposed can be waived in the facts and circumstances of the case. Appeal allowed in part.
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