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TMI Blog2023 (6) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of section 73(2) of the Finance Act, 1994. b) I direct the noticee to pay interest at appropriate rate as provided under section 75 of the Finance Act, 1994 on the demand confirmed at sr. no. 6.1(a) above c) I impose penalty of Rs. 16,46,32,093/- under the provisions of section 78 of the Finance Act, 1994. 6.2 As regards second demand notice issued vide V/STVII/ Dn.V/Gr.01/EMU-Lines/2014-15 dated 22.03.2016 issued for the period 2014-15 - a) I confirm the demand of Service Tax amounting to Rs. 1,59,88,245/- (Rupees One Crore Fifty Nine Lakh Eighty Eight Thousand Two hundred Forty Five only) under the provisions of section 73(2) of the Finance Act, 1994. b) I direct the noticee to pay interest at appropriate rate as provided under section 75 of the Finance Act, 1994 on the demand confirmed at sr. no. 6.2(a) above c) I impose penalty of Rs. 15.98,824/- (Rs. Fifteen Lakhs Ninety Eight Thousand Eight Hundred Twenty Four only) under the provisions of section 76 of the Finance Act, 1994. 6.3 As regards third demand notice issued vide V/GST/Bel/Dn.1/R 11/EMU Lines/2017-18, dated 29.01.2018 for the period 2015-16 - a) I confirm the demand of Service Tax amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. Penalty should not be imposed for not disclosing true and correct information in respect of the value of the aforesaid services on which no Service Tax was paid in the half yearly returns by the due dates under Section 77 of the Finance Act, 1994. d. Penalty should not be imposed for non-payment of Service Tax by the due dates under Section 76 of the Finance Act, 1994 and e. Penalty should not be imposed on them for suppressing the receipt of true value of taxable services and not paying the aforesaid Service Tax of Rs. 16,46,32,093/- (Rupees Sixteen Crores Forty Six Lakhs Thirty Thousand Ninety Three only) with intent to evade payment of service tax as discussed above under Section 78 of the Finance Act, 1994." 2.2 Subsequently another show cause-cum-demand notice dated 22.03.2016 was issued to the appellant asking them to show cause as to why:- "(i) Service tax (including cesses payable) Rs.1,59,88,245/- (Rupees One Crore Fiftynine Lakh Eighty Eight Thousand Two hundred Forty Five only) (including the cesses) as detailed in Table shown at para 11 ibid for the period from 2014 15 should not be demanded and recovered from them in terms of the section 73(1) of the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-TIOL-116-CESTAT-MUM] and Greenwich Meridian Logistics (I) Pvt. Ltd. [2016 (43) STR 215 (Tri.-Mumbai)] and the appeal against this decision of the Tribunal was dismissed by the Hon'ble Bombay High Court. 3.3 Arguing for the Revenue:- * Learned AR raised preliminary objection with regard to appearance of Shri Bharat Raichandani as he has no Vakalatnama filed in his name authorising him to cause appearance. * The services provided by the appellant are composite service in nature and business auxiliary services. These are the services provided to the exporters/shippers intending to export/ship their goods outside India. * Business auxiliary service has been defined any service in relation to - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (i) promotion or marketing of service provided by the client; or [Explanation - For the removal of doubts, 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, organized, conducted or promoted by the client, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and during the course of argument. 4.2 The preliminary objection raised by learned Authorised Representative cannot be sustained as the Chartered Accountant in whose name the Vakalatnama has been filed is present for the argument of the case. 4.3 We find that the issue is squarely covered by the decision of this Tribunal as referred to by the learned counsel for the appellant. 4.4 The arguments advanced by the learned AR before us were exactly identical to those considered by the Delhi Bench as is apparent from para 1 of the order which records as follows:- "The Revenue filed these two appeals against the original orders passed by the Commissioner dropping the proceedings against the respondent. The proceedings against the respondent were initiated to demand service tax under the category of Business Auxiliary Service with reference to various considerations received by them. The Adjudicating Authority after examination of the terms of contract and submissions made by the respondent held that the respondent were not promoting or marketing the services of client, either shippers or shipping lines. Accordingly, he dropped the demand proceedings against the respondent. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on his own behalf or through another person acting on his behalf; (ii) acts as principal, and not as an agent either of the consignor, or consignee or of the carrier participating in the multimodal transportation, and who assumes responsibility for the performance of the said contract; and (iii) is registered under sub-section (3) of section 4; And (a) "carrier" means a person who performs or undertakes to perform for a hire, the carriage or part thereof, of goods by road, rail, inland waterways, sea or air; 12. The appellant takes responsibility for safety of goods and issues a document of title which is a multi-modal bill of lading and commits to delivery at the consignee's end. To ensure such safe delivery, appellant contracts with carriers, by land, sea or air, without diluting its contractual responsibility to the consignor. Such contracting does not involve a transaction between the shipper and the carrier and the shipper is not privy to the minutiae of such contract for carriage. The appellant often, even in the absence of shippers, contract for space or slots in vessels in anticipation of demand and as a distinct business activity. Such a contract foreclo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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