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TMI Blog2023 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... t adjudication are as follows: The appellant is engaged in providing services of site formation and clearance and also for services of transport of goods by road, renting of immovable property and that of mining. During the audit of their records the Department observed that the appellant had received certain consideration towards commission on sub-contracts under the head "other income" during the period from October 2004 to November, 2006 for the work executed on back to back basis through their sub-contractors. Department formed an opinion that the commission was liable to be paid as tax under 'Business Auxiliary Services'. Accordingly, vide Show Cause Notice No. 16/159/2010 dated 22.04.2010 the aforesaid amount of Rs. 4,96,416/- was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Auxiliary Services for promoting or marketing the services provided by the sub-contractor. The proposal of payment of service tax on the said ground and confirmation thereof is therefore prayed to be set aside. Learned Counsel for the appellant submits that the show cause notice otherwise has been issued invoking the extended period of limitation despite that there is no such circumstances nor any apparent intent with the appellant to evade the tax liability. The Department should not have invoked the extended period of limitation. The demand in the show cause notice is for the period much beyond the normal period of issuing the show cause notice. The demand is therefore alleged to be hit by the bar of limitation. For this reason also the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it is hereby declared that for the purposes of this sub-clause, "service in relation to promotion or marketing of service provided by the client" includes any service provided in relation to promotion or marketing of games of change, organised, conducted or promoted by the client, in whatever form or by whatever name called, whether or not conducted online, including lottery, lotto, bingo;] (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or [Explanation - For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, "inputs" means all goods or services intended for use by the client;] (v) production or pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant. We also observe that sub-contractor was stepping into the shoes of the appellant by virtue of a duly executed agreement by and between the appellant and the concerned sub-contractor purely for undertaking by the sub-contractor for the execution of the entire work under the respective tender, adhering to all such terms and conditions as were imposed upon the appellant by virtue of his agreement with the said employer. The perusal of few such agreements, as found on record, reveals that the sub-contractor was also made liable to compensate the appellant for any loss or damage to which the appellant might be held liable to the employer/tender agency on account of failure or improper execution of the work by the subcontractor a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ka Constructions Vs Commr. Of Customs & Central Excise reported as 2021 (3) TMI 209 (CESTAT - Hederabad). 7. Findings with respect to second point of adjudication: The period of demand in the present case is from October, 2004 to November, 2006 and show cause notice of 22.04.2010 i.e. which beyond the normal period prescribed for issuing the show cause notice under Section 73 Finance Act. The proviso thereof enhances the normal period of 30 months to that of five years. However, only in the cases where the service tax has not been levied or paid or has been short levied or short paid or erroneously refunded by the reason either of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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