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TMI Blog2012 (8) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The second Appeal is ST/46/2008-SM filed by M/s. Ajmer Automobiles (P) Ltd against the Order-in-Original 135/07-Commissioner (S.T.) dated 25-10-2007 passed by the Commissioner of Service Tax, Jaipur-II under Section 84 of Finance Act, 1994. 2. Both these Appeals originated from SCN C. No. V (S.T.) 187/AJM/2005 dated 10-8-2005 and the first decision was by Joint Commissioner vide Order No. 09/ST/JP-II/2005 - Joint Commissioner dated 25-11-2005. (In some places this date is shown as 23-12-2005 which is the date of issue of order whereas 25-11-05 is the date of the decision). The order portion is reproduced below. "(i) I confirm the demand of Rs. 2,43,406/- (Rupees two lakh forty three thousand four hundred and six only) paya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l) by his order dated 31-3-2006 set aside the order of the Joint Commissioner. The operative part of the order is reproduced below :- "I have carefully gone through the case records and submissions made by the appellants at the time of personal hearing as well as in their appeal memo. The issue involved in this case is whether the so called incentive/commission/income received from various finance Co. and Banks would be chargeable to Service Tax as 'Business Auxiliary service.' The appellants have disputed their Service Tax liability and denied that they have rendered any services to finance Co. and Banks as they have not received any amount in excess to cost of car. I find that to raise/receive any amount from any one, there must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder M/s. Ajmer Automobiles have filed Appeal No. ST. 46/2008-SM. 7. When the SCN dated 30-7-2007 was issued the order-in-original dated 25-11-2005 was already set aside by order dated 31-3-2006 and the original order was non-est. So a review of the order was not sustainable. So the Order-in-Original dated 23-10-2007 issued by the Commissioner is not maintainable. However, the same matter is the subject matter of Appeal No. 262/2006 filed by the department which is maintainable. 8. Now, the Appeal filed by the department against order of Commissioner (Appeal) is to be decided. 9. It may be noted that the issued involved in this case is whether service tax need to be paid on Commission received by dealers of motor vehicles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular Vehicles and Services Ltd. v. C.C.E. Kochi - 2010 (18) S.T.R. 493 that in such situation tax is not payable again on the same amount. It is to be kept in mind that during the relevant period Cenvat credit scheme was not applicable for service tax. 13. The Ld DR replied arguing that a wrong section mentioned in the SCN cannot be fatal to the proceedings so long as there is a provision available in the statute book on the date of issue of SCN which would sustain the SCN if the facts relevant for understanding the offence and the nature of offence are stated in the SCN though with an error in section number. He relies on the following case law in the matter:- (1) C.C.E. v. Pradyumna Steel Ltd. - 1996 (82) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the section is not fatal to the Show Cause Notice so long as the ingredients of the new provision under Section 73(1) are satisfied. 18. The new section requires that Notice can be issued invoking the extended period only if there was suppression of information. In this case the information regarding commission received and also about payments received from the manufacturer was not disclosed in the service tax returns. This cannot considered as suppression with intent to evade tax, because the Assessee had a bona fide belief that they were not liable to pay tax on the amount received by them out of commission received by Maruti Udyog Ltd. on which Maruti Udyog Ltd. had paid Service tax. So this is not a fit case to invoke the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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