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2019 (11) TMI 435

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..... 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 - HELD THAT:- Apart from the fact that the appellant is a public sector undertaking of Government of Uttar Pradesh and as such cannot be attributed with any mala fide, we also note that the Commissioner in his impugned order has observed and thus the noticee may not have suppressed the facts, but because of their omission by not applying for registration non-filing .....

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..... 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 show cause notice dated 24 August, 2009 by invoking longer period of limitation. 3. The appellant during the course of adjudication took a categorical stand that they are not providing any service to M/s Coal India Ltd. and distribution of the coal on behalf of the said M/s Coal India Ltd. in terms of their agreement is their statutory duty. As such, they ar .....

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..... 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 Service‟, we note 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 servi .....

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..... 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 such, we find that the notification in question is not applicable to the facts of the present case. 8. Having held against the appellant on merits, we proceed to decide the limitation aspect of the demand being barred by limitation. The demand stands raised by way of issuance of show cause notice dated 24 August, 2009 for the period 2005-06 to 2007-08 was ti .....

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..... 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 Authority having himself held that there was no suppression on the part of the appellant, the longer period should not have been invoked. Apart from that we also note that the Commissioner has extended the benefit of Section 18 of the Finance Act to the appellant even though by extending such benefit she has imposed lesser penalty whereas such section requires n .....

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