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2019 (11) TMI 435

..... tc and distribution of the same to the financially weaker section of the society - extended period of limitation - HELD THAT:- The appellant‟s services are in relation to provisions of services on behalf of M/s Coal India Ltd. to distribute the coal for which duty is being assigned to the appellant on a consideration. Having provided such services on behalf of M/s Coal India Ltd. against consideration, the appellant have admittedly provided services falling under the category of “Business Auxiliary Service‟. Extended period of limitation - demand stands raised by way of issuance of show cause notice dated 24 August, 2009 for the period 2005-06 to 2007-08 was till 31 March, 2008 by invoking the longer period of limitation - .....

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..... he sides, we find that the appellant, which is a Government Company, is primarily engaged in procurement/purchase of food grains and essential commodities etc and distribution of the same to the financially weaker section of the society. Apart from that they entered into an agreement with M/s Coal India Ltd. for supply of coal, on their behalf, to various brick fields. For the said purpose they were paid consideration by M/s Coal India Ltd. 2. Revenue by entertaining a view that the said services provided by the appellant to M/s Coal India Ltd. falls under the category of Business Auxiliary Service‟ and the appellant was liable to pay service tax on the same raised the demand for the period 2005-06 to 2007-08, by way of issuance of sh .....

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..... and find that the same relates to the fees charged by Government Authorities for doing the Sovereign Act, for which the said authority were responsible. Such fees charged by the Authorities stands further deposited by them in the Government treasury. In the present case the prime function of the appellant is not the distribution of coal by M/s Coal India Ltd. The said activity being undertaken by them in terms of the contract by M/s Coal India Ltd. for which purpose they are being paid by M/s Coal India Ltd. It is not fee, which is being deposited by them to Government exchequer but is consideration, which is being retained by them. As such, Board‟s circular is not applicable. 6. On going through the definition of Business Auxiliary .....

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..... idered as a letter appointing the appellant as a nodal agency which was specifically done in the year April, 2008 itself. 7. The appellant have further referred to Notification No.13/2003-ST dated 20 June, 2003 which grants exemption to the commission earned by the commission agents. The terms commissions agent also stand explained in the said notification as a person who causes sale or purchase of the goods on behalf of another person for a consideration. Admittedly in the present case the appellant is neither doing the sale nor the purchase of any goods on behalf of any other person and as such cannot be held to be a commission agent. Their activity is for supervising the distribution of coal of M/s Coal India Ltd. against payments. As su .....

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..... iew regarding personal penalty on the corporation under Section 78 of the Finance Act, 1994. I hold that benefit of Section 80 can be extended in view of the discussion above. We do not find ourselves in agreement with the said findings of the Commissioner. On one hand the Adjudicating Authority is observing that there cannot be any suppression on the part of the assessee and on the other hand the longer period is being invoked on the sole ground of not taking of registration and non-filing of returns. It is well settled law that longer period of limitation is available to the Revenue only if there is a mala fide on the part of the assessee and evasion of tax with an intention not to pay the same. In the present case the Adjudicating Author .....

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