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C.S.T. New Delhi Versus M/s. Kamal Lalwani

2016 (12) TMI 398 - CESTAT NEW DELHI

Commercial concern - business auxiliary services - During adjudication the original adjudicating authority took a view that as the appellant was providing such services to M/s. Amar Products as an individual and not under the name of any commercial concern he would not be covered by the definition of Business Auxiliary Services as appearing in section 55 (105)(zzb) of the Finance Act 1994 - Held that: - the appellant in his individual capacity has provided services to M/s. Amar Products and was .....

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malafide can be attributed to the assessee. Revenue has not been able to produce any evidence on record to show that the tax, which according to the revenue was payable, was not being paid on account of any malafide. As such we agree with the lower authorities that the extended period would not be available to the Revenue. - Appeal rejected - decided against appellant-Revenue. - Appeal No. ST/384/2012-CU(DB) - Final Order No. 55554 /2016-CU(DB) - Dated:- 25-11-2016 - Ms. Archana Wadhwa, Memb .....

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ent by issuing a show cause notice dated 01.01.2008 alleging that during the period from 2003-04 to 2006-07, by selling the goods of M/s. Amar Products on commission basis, they have provided business auxiliary services, which were liable to service tax, raised the demand of service tax against the appellant. During adjudication the original adjudicating authority took a view that as the appellant was providing such services to M/s. Amar Products as an individual and not under the name of any co .....

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essee on the issue of time bar. Accordingly, he dropped the proceedings under the show cause notice. 3. Being aggrieved with the said order of original adjudicating authority, Revenue filed an appeal before Commissioner (A). The respondent took a categorical stand before the appellate authority that they were not engaged in providing any promotion marketing custom care or other incidental or auxiliary services falling under the category of Business Auxiliary services to Amar Products and has int .....

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buyer to only one exporter cannot be termed as activity provided by commercial concern. The respondent also assailed the demand on the point of limitation. While dealing with the merits of the case, commissioner (A) observed as under: From the clarifications issued by the CBEC in the above mentioned Circulars, it is amply clear that services performed by individuals in their individual capacity without having proper commercial establishment would not be chargeable to Service Tax. In other words, .....

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y Services . However, same are chargeable to Service Tax w.e.f 01.05.2006 when the term Commercial concern has been substituted by the term person w.e.f. 01.05.2006 in respect of subject Business Auxiliary Services . Therefore, there is no legal infirmity in the order of the adjudicating authority holding that services provided by individual person other than commercial concern would not be taxable prior to 01.05.2006 and according to evidence placed on record Shri Ravi Lalwani had provided said .....

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Dhiren Chemical Ind. 2002 (139) ELT 3 (SC). 4. As regards limitation the commissioner (A) has observed as under: I further find that extended period under section 73 of the Act ibid was not invokable in the case in hand as respondent was under a bonafide belief that services rendered by him were not taxable under service tax on account of various CBEC circulars and judgments of the Hon ble Tribunal in this regard. I find that it is settled principle of law that extended period is not invokable w .....

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the adjudicating authority that respondent had undertaken the said services as an individual and cannot be regarded as commercial concern in terms of definition of Commercial Concern in section 65(105)(zzb) of the Finance Act, 1994 as it existed prior to 01.05.2006, therefore, cannot be charged to service tax under the category of Business Auxiliary services before 01.05.2006 when the term Commercial Concern has been substituted by the term person in Section 65(105)(zzb) of the Finance Act 1994 .....

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