TMI Blog2017 (9) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... - appellant has made payment of service tax along with interest even before issuance of SCN as well as of the fact that the issue was an interpretational one and during the relevant period there was much confusion as to whether the said activity would fall within the Business Auxiliary Service or under internet advertisement services, which was introduced after 1.5.2006, the penalty imposed u/s 78 is unjustified. Appeal allowed - decided partly in favor of appellant. - ST/633/2009 - Final Order No. 42171 / 2017 - Dated:- 20-9-2017 - Ms. Sulekha Beevi C.S., Member ( Judicial ) And Shri Madhu Mohan Damodhar, Member ( Technical ) Shri M. Karthikeyan, Advocate for the Appellant Shri K. Veerabhadra Reddy, JC (AR) for the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sections 76 and 77 of the Finance Act, 1994. Hence this appeal. 2. On behalf of the appellant, ld. counsel Shri M. Karthikeyan submitted that the appellant has discharged service tax liability for the period 9.7.2004 till 28.2.2007 demanded in the show cause notice. That the appellant does not wish to contest the demand for the period after 9.7.2004. In respect of the demand for the period 1.7.2003 to 8.7.2004, he submitted that the demand is hit by limitation since there is no allegation established against the appellant that they suppressed the fact with intent to evade payment of service tax. It was also argued by him that for the said period 1.7.2003 to 8.7.2004, appellant would be covered by the benefit of the Notification No.13/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the bonafide belief that the activity was not a taxable one. Only with effect from 1.5.2006, the activity has become taxable under internet advertisement services. However, the department contended that the activity would fall within the definition of Business Auxiliary Service and the demand has been raised. That the failure to discharge service tax was only due to the confusion with regard to whether the activity carried out by the appellant would be taxable or not and therefore the demand raised invoking extended period is unsustainable. However, on being pointed out, the appellant has immediately paid service tax along with interest even before issuance of the show cause notice. For these reasons, the penalty imposed under section 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not fall into the definition of commission agent. For better appreciation, the definition of commission agent attached to the said notification is reproduced as under:- Business Auxiliary services provided by commission agents - Exempted In exercise of the powers conferred by section 93 of the Finance Act, 1994 (32 of 1994), the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts the business auxiliary services provided by a commission agent from the service tax leviable thereon under sub-section (20 of section 66 of the said Act. Explanation For the purposes of this notification, commission agent means a person who causes sale or purchase of goods, on behalf of anot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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