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TMI Blog2020 (1) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed" 1.2 Joint Commissioner has by his order dated 24.12.2012 held as follows: "i. I hereby confirm the demand of Service Tax (including Education cess and Higher education cess) of Rs. 15,40,818 (Rupees Fifteen Lakhs Forty Thousand Eight Hundred and Eighteen only) under proviso to Section 73(1) of the Finance Act, 1994, and order for its recovery. ii. I hereby impose a penalty on the Noticee of Rs. 200/- per day during which such failure continues OR at the rate of two percent of such tax per month, whichever is higher. This penalty is applicable in respect of non payment of service tax paid under the category of "Infrastructure Support Service" under Business Support Services for the period upto 10/05/2008 starting from the first day of due date till the date of actual payment of outstanding amount of service tax under Section 76 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994, as the Noticee failed to pay Service Tax in accordance with the provisions of Section 68 of the Finance Act, 1994. Provided that the total amount of the payable under this section shall not exceed the Service Tax payable. iii. I hereby order to recover an interest und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a Show Cause Notice dated 27.06.2011 was issued asking them to show cause why Service Tax amounting to Rs. 15,40,818/- short paid by them should not be recovered from them by invoking proviso to Section 73(1) of the Finance Act, 1994 along with the interest under Section 75. Penalties under Section 76, 77 & 78 of the Finance Act, 1994 was also proposed. 2.4 After considering the submissions made Joint Commissioner, has vide his order in original referred in para 1.2, supra adjudicated the show cause notice. Aggrieved by the order of Joint Commissioner, Appellants preferred an appeal before the Commissioner (Appeal). The appeal was dismissed by the Commissioner (Appeal) and Appellants preferred the appeal before CESTAT. 2.5 CESTAT has vide its Final Order No A/227/14/CSTB/C-1 dated 03.03.2014, remanded the matter back to Commissioner (Appeal) because as per CESTAT, the order in appeal was passed in gross violation of principles of natural justice. 2.6 After hearing the party, in remand proceedings, Commissioner (Appeal) has vide the impugned order adjudicated the matter again dismissing the appeal of the Appellant. Hence this appeal before us. 3.1 We have heard Shri Aparajit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doing the activity of "Renting". 10.6 On the other hand, Revenue has made a more clear cut case. Revenue has alleged that the nature of contract entered into by the Appellant with M/s Agro Fab is composite in nature and they are rendering infrastructural support which includes renting, and also broadly stated includes managing the business on behalf of M/s Agro Fab, which cannot be done without rendering infrastructural support. And such services are rightly covered under "Business Support Services" as alleged by the revenue. As both the Appellant and M/s Agro Fab are related and family members, they may have their internal financial arrangements. But this has nothing to do with the nature of services rendered by the appellant to M/s Agro Fab which is to be independently decided. Further the appellants contention regarding deductions to be allowed from gross value can only be accepted when there is clarity and acceptance on the part of appellant regarding classification of service and he comes up with the entire facts of the case correctly. Only then can it be decided whether any deductions from the gross value can be allowed or not and which of such heads are to be allowed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istance for marketing, formulation of customer service and pricing policies, infrastructural support services and other transaction processing. Explanation -For the purposes of this clause, the expression "infrastructural support services" includes providing office along with office utilities, lounge, reception with competent personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security; (Section 65(104c) of the Finance Act, 1994) "Taxable Service" means any service provided or to be provided to any person, by any other person, in relation to support services of business or commerce, in any manner; (Section 65 (105) (zzzq) of the Finance Act, 1994) The Board Circular dated 28.02.2006 explained the scope of the above said tax entry. It is clarified as under:- "Business entities outsource a number of services for use in business or commerce. These services include transaction processing routine administration processing, routine administration or accountancy, customer relationship management and tele-marketing. There are also business entities which provide infrastructural support such as providing instant offices along with secr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 21631 0 0 On the basis of above they had claimed the benefit of small scale exemption and had themselves determined the value of taxable service and the tax payable for each year as indicated below: (Refer para 12.1 of the Order in Original of the Joint Commissioner) Financial Year Taxable Value Tax Payable 2006-07 914760 111966 2007-08 1004040 124099 2008-09 721018 89117 2009-10 0 0 2010-11 0 0 Total Tax 325182 4.6 Thus after allowing the deduction as claimed by the Appellants towards Loan Repayment received, Sale of Goods, Job Charges received, excise duty and education cess the aggregate value of taxable services provided should be taken for computing the taxable value in the respective years and service tax liabilities determined accordingly after allowing the benefit of Small Scale Exemption under notification No 6/2005-ST dated 01.03.2005 as amended from time to time, subject to appellant fulfilling conditions as prescribed. 4.7 We do not find much force in the submissions made by the appellants on the issue of limitation because the facts which led to short payment of Service Tax were only in the knowledge of appellant and they had failed ..... 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