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2021 (3) TMI 218 - AT - Service TaxBusiness Support Service - Auctioneering services - extended period of limitation - penalty - HELD THAT:- The issue of auctioneering service and business support service, these issue stand covered by the decision of the Tribunal in the case of M/S. ATTUR AGRICULTURAL PRODUCERS VERSUS COMMISSIONER OF CENTRAL EXCISE [2019 (8) TMI 262 - CESTAT CHENNAI] where it was held that As far as the demand with respect to the Auctioneer’s Service is concerned, he would assert that the charge is only on auctioning service and not on tendering service. What they are rendering is facilitation of tenders for sale of the products of their members through sealed tenders. Therefore, the term “auctioneer’s service” does not apply to their activity at all and As far as the demand of service tax under “Business Support Service” is concerned, he submits that they give gold loans against jewels pledged by their members and collect an appraising charge of 3% on the amount of loan sanctioned subject to maximum of ₹ 100/- per loan as per the direction given by their finance bank. Appellants are getting loans from their bank namely M/s.Salem District Central Cooperative Bank, Salem and lending to their members on interest. Therefore, this is a case of they lending money to their members and not supporting service of business of some other bank. The facts analyzed in the above case is similar to the facts of the present appeals - there are no hesitation to apply the decision of this Bench which is rendered in one of the assessee’s own case - the demand under Auctioneering Service and Business Support Service cannot sustain. GTA Services - appellant has argued that during the relevant period when GTA services was introduced (w.e.f 1.1.2005), the understanding was that when individual truck owners are engaged the activity would not fall under definition of GTA - HELD THAT:- There were several litigations on this issue and the Tribunal in the case of NIRAV INDUSTRIES VERSUS COMMR. OF C. EX. & CUS., RAJKOT [2009 (3) TMI 592 - CESTAT, AHMEDABAD] held the issue in favour of assessee and it was upheld by Hon'ble Karnataka High Court in COMMR. OF SERVICE TAX, BANGALORE VERSUS LAKSHMINARAYANA MINING CO. [2012 (8) TMI 651 - KARNATAKA HIGH COURT]. Extended period of limitation - Penalty - HELD THAT:- As the issue was interpretational in nature and also for the reason that there were notifications exempting service tax for carrying food items which underwent amendment later, it cannot be said that the appellant has suppressed facts to evade payment of service tax. In fact, they were carrying food items as part of PDS. Such transportation would be clearly accounted with government and it cannot be said that appellant has willfully suppressed any facts. In the Show Cause Notice apart from a bald allegation that appellant has suppressed facts, there is no evidence of any positive act of suppression established by the department. The demand invoking extended period cannot sustain - On the same grounds, the penalties imposed under section 76 and 78 of the Finance Act, 1994 is unwarranted. Appeal allowed in part.
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