TMI Blog2007 (4) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... ly through consignment agents. In terms of the agreement between Bharat Aluminium Company and its consignment agents, goods are sent to the agent who clears them, warehouses them and sells them. 2. Under a show cause notice dated 2-7-2002, the appellant was called upon to show cause as to why service tax of about Rs. 3.4 crores should not be paid in relation to service rendered by the agents. The allegation was that consignment agents were clearing and forwarding agents. The period of demand was 16-7-1997 to 31-8-1999. The notice alleged that in regard to the service of the agents, the recipient was liable to tax in terms of Rule 21(d). 3. The appellant contested the demand and contended that the service of a consignment agent did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Counsel is that facts noted in the impugned order itself would show that the failure to pay tax, if at all, is the result of a bona fide belief by the appellant that the service in question was not taxable as "clearing and forwarding" agency service. Reference in this connection is made to para 26 of the Commissioner's order where the Commissioner has noted as under "I find that two opposite views of the CEGAT/CESTAT are available on the issue of taxability of consignment agents i.e. the cases of Prabhat Zarda Factory and Mahavir Generics. Hon'ble Supreme Court in the cases of Liberty Oil Mill Pvt. Ltd. v. CCE [1995 (75) E.L.T. 13 (S.C.)] and Novopan India Ltd v. CCE [1994 (73) E.L.T. 769 (S.C.) = 1994 (6) J.T. 80] have issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is covered in clause (a) of Section 73(i) of the Act prevailing at the time of issue of show cause notice and limitation of five years period for issue of show cause notice is applicable in this case. Therefore, the show cause notice issued to the appellant so far as it relates to period from 16-10-1998 to 31-8-1999 is not time barred under Section 73 of the Act." 9. The contention of the learned Counsel for the appellant is that it is well settled that when there is difference of opinion in judicial bodies, the assessee could not be faulted for holding either of the views. It is being pointed out that in such a case, failure to comply with the procedural requirement of law cannot beheld as resulting from mala fides but from a bona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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