TMI Blog2013 (7) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... means any service in relation to designing, developing or maintaining of computer software or computerised data processing or system networking - the activities of the assessees are not covered under any of the activity defined under Information Technology Service - the finding of the Commissioner (Appeals) that assessees are providing BAS and not Information Technology Service is upheld. Benefit of N/N. 13/2003, dated 1-3-2003 - Held that:- From going through the copy of the agreement between the assessee and M/s. eBIZ it is noticed that the activity of the assessees are more than the commission agent and moreover the assessee is also getting the commission in this case for purchase of goods not by the assessee but by his orbit of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.T./371/2009 Avtar Sodi - Assessee 32/S.T./Appl/Jal/09, dated 19-3-2009 2. S.T./499/2009 Revenue -do- 3. S.T./372/2009 Amrit Pal Singh Sodhi - Assessee 35/S.T./Appl/Jal/09, dated 19-3-2009 4. S.T./500/2009 Revenue -do- 5. S.T./373/2009 Jaskirat Singh Bhullar - Assessee 36/S.T./Appl/Jal/09, dated 20-3-2009 6. S.T./502/2009 Revenue -do- 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the department that assessees were providing taxable services to eBIZ and receiving the commission for selling their products/packages finding new associate packages/products and explaining company s market plan to them, sponsoring them to repeat the same process for making new persons as prospective associate and motivating other associate for doing more business of eBIZ. Accordingly assessees were issued Show Cause Notices alleging that services provided by them are covered under clause (ii) of Section 65(19) of Finance Act as Business Auxiliary Service and assessees are also liable to penalties under Sections 76, 77 and 78 of the Act. Show Cause Notices were adjudicated by the original authority confirming the service tax along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on agent, but does not include any information technology service. Explanation :- For the removal of doubts, it is hereby declared that for the purposes of this clause information technology service means any service in relation to designing, developing or maintaining of computer software, or computerised data processing or system networking or any other service primarily in relation to operation of computer systems. 5. On 10-9-2004 Section 65(19) reads as under :- (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chnology Service. We find that as per explanation given under Section 65(19) Information Technology Service means any service in relation to designing, developing or maintaining of computer software or computerised data processing or system networking. We find the activities of the assessees are not covered under any of the activity defined under Information Technology Service. We therefore uphold the finding of the Commissioner (Appeals) that assessees are providing BAS and not Information Technology Service. 7. It is also the contention of the assessees that they are the commission agent and accordingly services provided by a commission agent are exempted under Notification No. 13/2003, dated 1-3-2003. Under this notification activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x amount along with interest was paid before the issue of show cause notice and as such they are not liable to pay penalty. We find that the provisions of Section 73(3) of the Finance Act are subject to the provisions of sub-section (4) of Section 73 of the Finance Act. Once the ingredients of Section 73(4) are present the provisions of Section 73(3) are not applicable. Therefore the contention of the assessees for not liable to any penalty in view of the payment of service tax with interest before issue of Show Cause Notice is not acceptable. We also note that the benefit of penalty equal to 25% of the tax amount is also not applicable to the assessees as they have not paid 25% of the tax amount as penalty within one month from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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