TMI Blog2019 (1) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... ern being reasonably big, the appellants claim that they are proprietorship concern and not a commercial concern, does not find favour with us - the activity undertaken by the appellants are certainly not on a small scale to be held to be a proprietorship concern in the understanding of a common man - the Ld. Commissioner has rightly observed that the service rendered by the assessee is as a commercial concern. Appellant also claims themselves to be a commission agent of their customers - Held that:- Sub-clause (vii) under Business Auxiliary Service includes a service incidental or auxiliary to any activity specified in clauses (i) to (vi) and includes activities such as billing, issue or collection or recovery of cheques, payments, main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 20048/2019 - Dated:- 14-1-2019 - SHRI S.S GARG, JUDICIAL MEMBER And SHRI P. ANJANI KUMAR, TECHNICAL MEMBER Mr. Manoj Pillai, Advocate For the Appellant Mr. K. B. Nanaiah, Asst. Commissioner (AR) For the Respondent ORDER Per: P. ANJANI KUMAR Shaji Thomas, Proprietor of M/s. Manjankal Business Corporation (MBC), Thiruvananthapuram, is a proprietorship concern are engaged in providing services, to their clients like M/s. Bharat Distilleries, Mumbai and M/s. Allied Domecq Spirits and Wine India Pvt. Ltd., Delhi, in respect of supply of IMFL to CSD canteens. Their work as per the agreement is as below: a) To collect the procurement orders issued by Main Head office CSD, Mumbai and to submit the same with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o (vi) from September 10, 2004, if at all their service is classifiable under Business Auxiliary Service, it would be under Clause (vi) as they are providing a service on behalf of the client, which is exempted according to the Notification No.14/2004. 2.1 They also contended that they are proprietary concern and as such, they cannot be classified as any commercial concern providing the above-mentioned services. They have also submitted that they are commission agents of their customers partly as they render sales on behalf of their customers. 3. Ld. AR has reiterated the findings of the OIO and has submitted that in view of the decision of Madras High Court in the cases of KMB Granites Pvt. Ltd.: 2014 (35) STR 63 (Mad.) and Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants are certainly not on a small scale to be held to be a proprietorship concern in the understanding of a common man. We find that the agreements are entered into by Mr. Shaji Thomas as the proprietor of MBC. It is on record as observed by the Ld. Commissioner that the appellant themselves have taken a stand that they are a commission agent and, in that senses, he is a commercial concern. We find that the Ld. Commissioner has rightly observed that the service rendered by the assessee is as a commercial concern. 5.1 Another issue is that the appellant claims themselves to be a commission agent of their customers. On going through the contracts, the basic requirement of the service is not to be an agent of sale on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants are within the ambit of Business Auxiliary Service. 5.2 The period involved in the show-cause notice is 1.3.2003 to 31.3.2006 and the show-cause notice is issued on 1.3.2007. On the issue of limitation, we find that the Ld. Commissioner has held that the appellants did not comply even with the basic requirement of law in spite of hectic campaign taken by the department through visual as well as print media. The Commissioner has also observed that the intention to evade duty need not always be associated with actions, it can also be by inaction. We find that the findings of the Commissioner are at variance with the interpretation of law and provisions thereof, by various Courts and Tribunals. It has been laid down that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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