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2013 (7) TMI 1055 - AT - Service TaxClassification of Services - Business auxiliary services or Information Technology Service?- Whether assessees are liable to service tax under Business Auxiliary Service on the amount of commission and other remuneration received by eBIZ during the period 1-7-2003 to 31-3-2007? Held that:- On going through Agreement between eBIZ assessee and also activities undertaken by the assessee, there is no doubt that assessees are involved in promotion or marketing of services of eBIZ and getting commission for the eBIZ for the same - as per explanation given under Section 65(19) Information Technology Service means any service in relation to designing, developing or maintaining of computer software or computerised data processing or system networking - the activities of the assessees are not covered under any of the activity defined under Information Technology Service - the finding of the Commissioner (Appeals) that assessees are providing BAS and not Information Technology Service is upheld. Benefit of N/N. 13/2003, dated 1-3-2003 - Held that:- From going through the copy of the agreement between the assessee and M/s. eBIZ it is noticed that the activity of the assessees are more than the commission agent and moreover the assessee is also getting the commission in this case for purchase of goods not by the assessee but by his orbit of the associates. Also this notification applies to sale and purchase of goods whereas the present assessees are also engaged in promoting the sale and purchase of the services - benefit of notification cannot be allowed. Extended period of limitation - Held that:- The assessees failed to get themselves registered with the service tax department and they did not make any payment of service tax within the prescribed time and did not file the prescribed returns in time as required under the service tax law - extended period rightly invoked. Penalties - Held that:- The benefit of penalty equal to 25% of the tax amount is also not applicable to the assessees as they have not paid 25% of the tax amount as penalty within one month from the date of the order - penalty u/s 76 and 78 also upheld. However, the benefit of cum-tax value is available to the assessees Appeal allowed in part.
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