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2017 (5) TMI 102 - AT - Service TaxBusiness Auxiliary Service - liability of tax - During the course of their business, they also help and guide their customers to get loan from banks for buying car. They also help the bank to enforce and recover amount from defaulters. In consideration of the said activities, the appellants get remuneration from banks/financial institutions - whether the appellant is liable to pay tax on such remuneration? - Held that: - The Board vide Circular dated 20.06.2003 clarified the scope of activities covered under “Business Auxiliary Services”. Among other things, service provided in relation to getting a customer, verification of prospective customer, etc. are clarified to be covered by the tax entry - Reading together the statutory scope of the tax entry as above and the activities carried out by the appellant as narrated in the agreement, it is clear that the activities of the appellant are covered by the tax entry “Business Auxiliary Service”. Invocation of section 73(3) - validity of SCN and proceedings initiated against assessee - the appellant deposited the service tax along with interest during the course of investigation itself - Held that: - the service tax due on taxable services were discharged by the appellant, though belatedly, with interest, upon initiation of enquiry by the department. In normal course, service tax is self assessed by the assessee. Here, the tax liability not paid in time was pointed out and as such paid later. Such payment is towards tax dues and cannot be considered as a deposit of amount for undetermined liability to be decided in future. The appellants paid service tax as per the obligation cast on them in terms of Section 68 of FA, 1994. We have already held that upon payment of such tax due, the provisions of Section 73(3) will come into play in the present case. Refund of excess amount paid by assessee - Held that: - The appellants shall be entitled for return of excess amount of tax, if any, paid by them. They have claimed that there is error in totaling the amount received as consideration from the banks. We find that this requires verification and the Original Authority can examine the correct factual position with records for settling the request made by the appellant regarding excess payment. Concession under Section 67(2) - Held that: - When the gross amount received by the appellant has been taken into account for calculating service tax, concession under Section 67(2) can be considered where there is no service tax element separately shown in the documents. We direct that the jurisdictional authority to verify whether there is any indication regarding service tax in the invoices etc. issued by the appellant. The appellants are liable to service tax during the material time. The correct amount of tax liable to be paid shall be cross verified by the jurisdictional authorities to examine the claim of excess payment and claim for cum tax benefit by the appellant. In case of excess payment on these grounds the same shall be refunded to the appellant subject to refund provisions - the case was fit for closure u/s 73(3) of the FA, 1994 and as such, penalties imposed on the appellant are set aside. Appeal partly allowed and part matter on remand.
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