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TMI Blog2023 (6) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... mposing equal penalty under Section 76 and Section 78 and a penalty of Rs. 3,67,987/- under Section 78. On an appeal filed by the appellants, Commissioner (Appeals) vide order dated 31.01.2011 upheld the order of the lower authority. Hence, this appeal. 2. Shri Sudhir Malhotra assisted by Ms. Gurmehar Kaur, learned counsel appearing for the appellant submits that in terms of Section 65(105) (zzb) of Finance Act, 1994, the individual being not a commercial concern was not liable to pay Service Tax under the category of "Business Auxiliary Service" prior to 18.04.2006; he brings out the changes in the definition of taxable service by Commission Agent under "Business Auxiliary Service" had undergone changes as under: 01.07.2003 to 15.06.2005 Taxable service means any service provided to a client, by a commercial concern, in relation to business auxiliary service. 16.06.2005 to 17.04.2006 Taxable service means any service provided or to be provided to a client, by a commercial concern, in relation to business auxiliary service. w.e.f. 18.04.2006 Taxable service means any service provided or to be provided to a client, by any person in relation to business auxiliary serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri. Del.) * CCE VS R.S. Financial Services- 2008 (9) STR 231 (Tri. Del.) * C.M. Sapkal Vs CCE- 2016 (43) STR 106 (Tri. Mumbai) * Krishan Murari Gupta Vs CCE -2016 (44) STR 682 (Tri. Delhi.) 6. On the appellant's contention that credit of service tax paid on input services was not extended to the appellant. She submits that the appellants did not produce any documentary proof and not even a Chartered Accountant certificate to justify their claim. On invocation of extended period, she submits that the appellant has not taken any registration and did not pay any service tax as held in Dharampal Satyapal Vs CCE- 2005 (183) ELT 241 (SC) and Vidarbha Cricket Association Vs CCE, Nagpur- 2015 (38) STR 99, held that invoking extended period under such circumstances is permissible. Regarding the contention that penalty under Section 76 and Section 78 cannot be imposed together, she relies on Board of Control for Cricket in India Vs CST- 2015 (37) STR 785 (Tri. Mumbai) and Asst. Commissioner Vs Krishna Poduval- 2006-TIOL-77HC-KERALA-ST. 7. Heard both sides and perused the records of the case. The issue before us is to decide whether the appellants who rendered Business Aux ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an also be described as business of a partnership concern and likewise for a company. Therefore, there was no valid reason for the appellate Commissioner to hold that, a sole-proprietory concern was not a commercial concern, and therefore, service tax was not leviable when taxable service was provided by a proprietory concern. A proprietory concern would mean the same thing as a proprietory business. The distinction sought to be made out by the Commissioner (Appeals) is without any real difference in the nature of activity in the nature of 'Business Auxiliary Services' which can be provided by any of such concerns. The ground that, specific clause of 'Business Auxiliary Services' was not specified by the Revenue in the show cause notice is erroneous because, sufficient facts are disclosed in the show cause notice to indicate that the services which are alleged to have been provided were in the category of 'Business Auxiliary Services'. The impugned order cannot, therefore, be sustained. 9. In view of the above judgments, we find that commercial concern covers individuals also when they are into a business and to this extent, we find that the appellant's ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been buying a similar kimam from various traders. These circumstances constituted evidence of suppression brought on record by the department in answer to which it was contended on behalf of the assessee that they were under a bona fide impression that the compound was not excisable and that the benefit of proforma and modvat credit together with the benefit of exemption under Notification No. 121/94, dated 11-8-1994 was substantially equal to the demand for duty herein and, therefore there was no intention to evade payment of duty. 24. We do not find any merit in these submissions. As stated above, the adjudication in this case was confined to the question of excisability and concealment of the existence of two units in which the compound (kimam) was manufactured. No explanation has been given by the assessee for not disclosing the affairs of these units, particularly when the assessee was in business for couple of years and when the assessee had been dealing with other traders who operated from licensed factories. It was for the assessee to explain the reasons for not getting the units registered or licensed. It was for the assessee to explain its failure to maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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