TMI Blog2015 (2) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... (68) and Section 65 (105) (w) readwith Section 65 (94) of the Finance Act, 1994. - Following decision of Punjab Ex-Service Corporation vs. Union of India [2010 (9) TMI 871 - PUNJAB & HARYANA HIGH COURT] Since there was no malafide or intention to evade on the part of the appellant, it has to be held that non-payment of service tax was due to bonafide reason and, hence, invoking Section 80 of the Finance Act, 1994 penalty under Section 76, 77 and 78 have to be waived. - Decided partly in favour of assessee - Service Tax Appeal No.213 of 2009 - - - Dated:- 8-5-2014 - G Raghuram And Rakesh Kumar,JJ. For the Appellants : Shri L P Asthana And Ms Tuhina Sinha, Advs. For the Respondent : Shri Amresh Jain, AR-DR ORDER Per: Rakesh Kumar: The facts leading to filing of this appeal are, in brief, as under. 1.1 The appellant are a cooperative society registered under Rajasthan Cooperative Societies Act, 1965 for the welfare of ex-servicemen. The appellant employ ex-servicemen and in terms of the bye-laws framed by the Government of Rajasthan vide letter No. F-4/6/COOP/65 dated 11/10/95 they provide the following services:- (1) security service to any person w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led. 2. Heard both the sides. 3. Shri L.P. Asthana and Ms. Tuhina Sinha, Advocates, the learned Counsels for the appellant, pleaded that while Section 65 (105) (k) covered the services provided to a client by a Manpower Recruitment or Supply Agency in relation to recruitment or supply of manpower temporarily or otherwise in any manner, Section 65 (105) (w) covered the services provided to a client by a security agency in relation to security of any property or person by providing security personnel or otherwise including the provision of service of investigation/detection or verification of any fact or activity, that during period till 30th April 2006, in terms of the definition of security agency as given in Section 65 (94) and of Manpower Recruitment or Supply Agency as given in Section 65 (68), the security agency or manpower recruitment or supply agency were required to be a commercial concern , that it is only w.e.f. 01/05/06 that the term commercial concern was replaced by any other person , that in view of this, during period prior to 01/05/06, if the service of security agency or manpower recruitment or supply agency was provided by any entity which is not a comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-payment of service tax and accordingly penalty should be waived under Section 80, that on the point of limitation the appellant rely upon the judgments of the Apex Court in the cases of CCE vs. Wonderax Laboratories, I.P.L. reported in 2010 (255) E.L.T. A16 (S.C.) and Larsen Toubro Ltd. vs. CCE, Pune - II reported in 2007 (211) E.L.T. 513 (S.C.) and also the judgment of Hon'ble Chattisgarh High Court in the case of Union of India vs. Bharat Alluminium Co. Ltd. reported in 2012 (26) S.T.R. 101 (Chattisgarh), that in all these judgments it has been held that when short payment or non-payment of tax was due to bonafide belief on the part of the assessee on account of conflicting judgments of the Tribunal and High Courts the extended limitation period under proviso to Section 11A (1) of the Central Excise Act, 1944 cannot be invoked. 4. Shri Amresh Jain, the learned DR, defended the impugned order by reiterating the findings of the Commissioner and pleaded that though during period prior to 01/05/06, the word commercial concern had been used in the definitions of the security agency and manpower recruitment or supply agency, as given in Section 65 (94) and Section 65 (68) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any fact or activity was taxable in terms of the provision of Section 65 (105) (w). The definition of 'security agency' as given in Section 65 (94) and the definition of 'manpower recruitment or supply agency' as given in Section 65 (68) during the period prior to 01/05/06 used the word commercial concern but w.e.f. 01/05/06 this term was substituted by 'any other person'. The appellant's contention is that various Cooperative Societies registered under the Cooperative Societies Act of the respective States for welfare of ex-servicemen by providing employment to them are not commercial concern and hence during period prior to 01/05/06 their activity would not attract service tax and in this regard they rely upon various judgments of the Tribunal as mentioned above. However, Hon'ble Punjab Haryana High Court in the case of Punjab Ex-Service Corporation vs. Union of India (supra) has taken a contrary view. In our view it is the judgment of Hon'ble Punjab Haryana High Court which would be binding on this Tribunal as there is no contrary judgment of any other High Court. Therefore, we hold that during the entire period of dispute including th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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