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Nahar Industrial Enterprises Ltd. Versus CCE And ST, Chandigarh

2017 (12) TMI 390 - CESTAT CHANDIGARH

Levy of tax - appellant had been charging some amount from the transporters for arranging/providing cargo but in the case of Ex-mill sales, the appellant were arranging for the transport of the finished goods to the buyers - business auxiliary services - extended period of limitation - Held that: - Since the appellant provide volume of business to the transporters, the lower authorities have correctly held that they are promoting business for transporters - it is evident that there is clear unde .....

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India & Ors. Versus M/s Martin Lottery Agencies Ltd. [2009 (5) TMI 1 - SUPREME COURT OF INDIA], where it was held that Service tax purports to impose tax on services on two grounds (1) service provided to a customer and (2) service provided to a service provider - the service tax has been correctly charged in the category of BAS. - Extended period of limitation - Held that: - the information with regard to charging of amount of the given service and activity was never brought to the notice o .....

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ana Wadhwa, Member (Judicial) And Mr. Devender Singh, Member (Technical) For the Appellant : Shri Surjeet Bhadu, Advocate For the Respondent : Shri G.M.Sharma, AR ORDER Per : Devender Singh The brief facts of the case are that the appellant are engaged in the manufacturing and processing of fabric and clearing the same under exemption Notification NO.29/04-CE and 30/04-CE dated 9.7.2004. A show cause notice was issued to them demanding service tax along with interest and proposing penalties unde .....

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icating authority granted them the benefit under Section 80 of the Finance Act, 1994 holding that the appellant had bonafide belief and there was reasonable cause for failure to pay service tax. Aggrieved from the said order, the appellant went in appeal. The Commissioner (Appeals) rejected the appeal. Aggrieved from the same, the appellant have this appeal. 2. Ld.Advocate for the appellant submits that the assumption made by the Revenue that certain amount paid by the transporters to the appell .....

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freight. He also added that there was no finding on fraud, collusion, wilful mis-statement or suppression of facts, etc. and elements of extended period are same as the elements of penalty under Section 78, which has been waived by the adjudicating authority. He relied upon the following judgments: (1) Azad Construction Co. Vs. CCE & ST, Jaipur-I-2017 (49) STR 77 (Tri.-Del.) (2) Aggarwal Trading Co. Vs. CCE-2016 (44) STR 479 (Tri.-Del.) (3) Rajasthan Renewable Energy Corpn. Limited Vs. CCE, .....

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by them was delivered to the buyers at the factory gate, so as to avoid any kind of responsibility/obligation arising during the transit from place of manufacture to place of delivery. They being manufacturer of fabric, have certain regular customers, who authorize them to arrange transportation on their behalf. In such cases, they identify transporters and negotiate the freight with the transporters on behalf of the buyers. They are representative of the buyers, as the goods are sold in these .....

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for transporters. As for the contention, that there is no contract between the transporter and the appellant, it is evident that there is clear understanding between the transporters and appellant that the consideration is being paid to them for the volume of business arranged for the transporters. As for the contention, that the BAS should be provided to a client and the transporter is not a client, we agree with the following findings of the Commissioner (Appeals): 4.2 As regards the appellan .....

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lant to transporter who is a service provider therefore the above contention of the appellant is not tenable. As such the demand of service tax is upheld. Hence, the service tax has been correctly charged in the category of BAS. 6. On the extended period, we find that the adjudicating authority has given the benefit of Section 80 of the Finance Act,1994 on the following grounds: .......I find that apparently the default has occurred because the amounts were recorded in their accounts as on accou .....

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by way of periodical returns or otherwise. Nevertheless, in the end, he has concluded that the appellant had bonafide belief that they were not liable to pay service tax on the renegotiated freight. Once the finding of the bonafide belief is given by the adjudicating authority, invocation of extended period of limitation would not be available to the Revenue as has been held by this Tribunal in the case of Azad Construction Co. Vs. CCE & ST, Jaipur-I-2017 (49) STR 77 (Tri.-Del.) wherein thi .....

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