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TMI Blog2012 (5) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... lief. 2. Ld. Counsel appearing on behalf of the Appellant submitted that the Appellant arranges documents from prospective buyer of the bank and submits profile basing on those documents to the bank which results in disbursement of the loan to the borrower. There is no relationship between the Appellant and the borrower to provide any service to call that service as 'Business Auxiliary Service' provided and taxable. Only because there was a visit by investigating officers on 20th Jan. 2005, a Show Cause Notice was issued making allegation that the Appellant received commission amounting to Rs.41,34,000/- and that has escaped levy of service tax of Rs.3,64,801/-. 3. It was also submitted by the learned Counsel that the Appellant did not prefer to litigate as a peace loving and bonafide assessee but on protest, paid the service tax, interest element and 25% of the penalty, if any, imposable before Adjudication was completed. Law being newly introduced bringing the provision of certain services to be called as 'Business Auxiliary Service' for taxation under the Act, the Appellant deserves to be exonerated from penalty, if any, imposable and tax liability, if any arises. 4. He furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment or agreement, if any, exists between the bank and the Appellant to examine the locus standi of the Appellant in the triangular deal. But neither the document is presented today nor that is apparent from record. Therefore, in absence of any cogent evidence, role of the Appellant as taxable service provided as recorded by first Appellate Authority remained unchallenged. Accordingly, the Appellant#s contention that it was providing service to the prospective buyers is unsustainable. 7.2 We examined the nature of service provided by the Appellant and the remuneration paid for the service so provided in terms of the fact recorded in para-2 of the Appellate order. There is no dispute of receipt of an amount of Rs.41,34,000/- by the Appellant from the bank for the nature of service provided to enable the bank to consider the funding proposal. The remuneration paid to the Appellant was not for any other purpose but for promoting the funding business of the banker. The role of the Appellant was a catalyst to connect funding agency with the borrower. The fact on record discloses that the Appellant was only serving the bank in terms of orders passed by authorities below (in absen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in cases of subterfuge to Revenue within five years of the relevant date. Apex Court in para-24 of the judgment dealt the cause of action in the case of Mehta & Co. in the decision supra. The Appellant falls within the fold of para-24 of the judgment of the Apex Court. Therefore issuance of the Show Cause Notice dated 22.6.2006 is well within time for the period escaping levy. In the present case, limitation can be reckoned from the date of knowledge of the department on 20.1.2005 giving rise to cause of action. Following the ratio laid down by the Apex Court, we hold that the Adjudication is not time-barred. Issue No. 3 is thus answered as above having relevance to Issue No. 1. 8. The second issue raised was that the amendment by the Finance Act, 2004 read with Notification No. 14/2004 grants immunity to the Appellant from taxation. The period of Adjudication is 1.7.2003 to 31.3.2005. If the service is provided by the Appellant to the borrower, in that circumstance, it can be said that service was provided to such borrower on behalf of the client of the Appellant and notification applies to such case. But service provided by the Appellant in the present case was to the finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 2011. Neither by implication nor by necessary expression, law enables Tribunal to consider such prayer. Whenever legislature intend the Tribunal to be vested with discretionary power they prescribe. Section 78 of the Finance Act 1994 does not have such mandate. Therefore we decline to condone the delay of five days as prayed for by the Appellant. But we tried to find out whether the Appellant can get any relief of reduction of penalty to 25% of the tax demanded following the decision of the Hon'ble High Court of Delhi in K.P. Pouches (P) Ltd. Vs. UOI reported in 2008 (228) ELT 31 (Del.). We are guided by the rationale behind prescription of the time of 30 days. The Hon'ble High Court held that the Adjudicating Authority should indicate in the Adjudication order that assessee shall have option to pay taxes within 30 days of the receipt of such order. There is no such whisper about the option being granted in the Adjudication order. Following the ratio laid down by Hon'ble High Court of Delhi, we are of the view that the Appellant shall be entitled to the concession in penalty limiting that to 25% of the tax demanded. On such count, the Appellant gets partial relief. 11.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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