TMI Blog2010 (4) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... [Order per : D.N. Panda, Member (J)]. Alongwith the appeal, the appellant has also moved stay-application for stay of realization of service tax demand of Rs. 80,99,58,723/- in respect of business auxiliary service held to have been provided by the appellant as an agent of M/s. Sahara India Financial Corporation Ltd. (hereinafter referred to as SIFCL). On the demand raised, interest was also levied under Section 75 of Finance Act, 1994. So also there was levy of penalty under Section 76 of the said Act which is equal to the amount of service tax demanded above. Added to that, penalty of Rs. 1,000/- was imposed under Section 77 of the said Act. A penalty of Rs. 80,99,58,723/- was also imposed under Section 78 of Finance Act, 1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nput service was admissible to the Appellant during the period of demand; (e) Whether the Noticee was liable to penalty under Sections 76, 77 78 of Finance Act, 1994 for violation of different provisions of Finance Act, 1994. 4. The issues framed as above were decided by the ld. Adjudicating Authority in terms of paras 19 to 23 of OIO appearing at page 23 to 39. While examining the issues before him, pleadings of the appellant were also considered by ld. Adjudicating Authority. Crucial question being whether service provided by the appellant was falling under the category of Business Auxiliary Services , the authority below also tested the facts of the appellant in terms of law prevailing for the periods1-7-2003to17-4-2006,18-4-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant. 7. So far as the plea of Cenvat Credit is concerned, learned Adjudicating Authority examined such issue in para 22.4 of OIO. She having found that the appellant had not sought registration under Finance Act, 1994, held that no eligibility to the Cenvat Credit Rules, 2004 arose. No material evidence was produced for consideration of plea of Cenvat Credit of Input service nor was there any compliance to avail such benefit. Therefore learned Adjudicating Authority held that Cenvat credit benefit was deniable. 8. The claim of reimbursement of expenses not liable to tax was dealt by ld. Adjudicating Authority in para 22.3 of OIO. Finding no documentary evidence for supporting such claim that was disallowed and the claim forme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants have not provided the service taxable under Clause (iv) of definition. (C) The services provided by the Appellant are not taxable under clause (iv) of the definition of the term Business Auxiliary Services even after10-9-2004as per definition contained in Section 65(19) of Finance Act, 1994. The provision of service on behalf of the client is taxable under this category if the service is provided on behalf of the client. There was no relationship of client and service provider between the appellant and M/s. SIFCL. (D) Demand was time barred and extended period cannot be invoked if there is bona fide belief for non-payment of service tax. (E) The appellants rely upon the following judgments : (i) Cosmic Dye Che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent relevant periods. Thread bare examination was made in para 20.1 to 22.1 of OIO demonstrating that the fact of promoting business of the SIFCL by the appellant was of the nature of business auxiliary services . Ld. Adjudicating Authority had taken into consideration the judicial pronouncements in respect of category of services provided and came to the conclusion that the appellant provided business auxiliary services . 15. We have depicted the manner of examination done by ld. Commissioner hereinbefore and prima facie of the opinion that the appellant shall be required to make pre-deposit for hearing of its appeal when entire pleading of the appellant was considered by learned Commissioner by reasoned and speaking order in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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