TMI Blog2023 (6) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the definition of service it is taxable and the fact that some wrong classification by revenue has been given to it, is not of much help of the assessee as prior to 1.7.2012 services were distinguished under different categories u/s. 65(105) ibid and service tax was charged u/s. 66 therein but w.e.f. 1.7.2012 section 66 ibid was replaced by section 65B ibid for charging service tax. Admittedly the appellant had deposited the duty immediately after being pointed out by the audit which, in the facts of this case, strengthens the stand of the appellant that there was no willful or deliberate suppression on their part. So far as the period 2013-14 is concerned the duty is demanded after invoking the extended period of limitation by at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7224 of 2019 - A/85966/2023 - Dated:- 19-6-2023 - MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri Udayan Choksi, Advocate for the appellant Shri Prabhakar Sharma, (AR) for the respondent ORDER This appeal has been filed from the impugned Order dated 23.04.2019 passed by the Commissioner of Central Tax (Appeals), Raigad by which the appeal filed by the appellant was rejected. 2. The issue involved herein is about the corporate commission given by the appellant herein to its holding company abroad i.e. M/s. Thyssenkrupp, Germany which, according to revenue, is liable to be taxed as Business Support Service . Whereas according to the appellant, no service was provided by the holding company to the appellant and the commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audit, the appellant paid the amount vide challan dated 20.7.2017 under protest . The Adjudicating Authority vide Order-in-Original dated 29.11.2017 confirmed the demand alongwith interest and penalty and the amount of service tax of Rs.12,93,203/- deposited by the appellant was ordered to be appropriated. On appeal filed by the appellant, the 1st Appellate Authority vide impugned order dated 23.4.2019 rejected the same except issue of imposition of penalty u/s. 77(2) ibid. 4. According to learned counsel M/s. Thyssenkrupp AG, Germany extended corporate guarantee to the appellant s client M/s. Praxair India Pvt. Ltd. in India for setting up 7.5 TPH Hydrogen plant in Odisha for which commission was reimbursed to them and therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant has not raised any issue about classification or taxability of the service at the time of audit or at time of payment of service tax and that since they have not paid the tax on time therefore interest and penalty have rightly been demanded from them. Learned Authorised Representative prayed for dismissal of Appeal. 5. I have heard learned counsel for the appellant and learned Authorised Representative for the revenue and perused the case records including the synopsis/written submission and case laws placed on record. With effect from 1.7.2012 section 66B(44), Finance Act, 1994 defined service as any activity carried out by a person for another for consideration and includes a declared service . There is nothing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression with intention to evade tax, something more needs to be brought on record by the department. The Hon ble Supreme Court in the matter of Continental Foundation vs. CCE, Chandigarh-I; 2007(216 ELT 177 (SC) has laid down that the expression suppression has been used in the proviso to Section 11A of Central Excise Act, 1944 accompanied by very strong words as fraud or collusion and therefore, has to be construed strictly and mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Similarly in the matter of Pahwa Chemicals v. CCE - 2005 (189) E.L.T. 257 (S.C.) it has been laid down by Hon ble Supreme Court that mere failure to disclose does not amount to misdeclara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, therefore no penalty can be imposed. If there is some delay in depositing the tax then certainly interest is chargeable which the lower authority can calculate and therefore it is appropriate to remand the matter back to the adjudicating authority for calculating the amount of tax alongwith interest, if any, for the period 2014-15 and to adjust the same from the tax already deposited by the appellant vide challan dated 20.7.2017. 6. In view of the discussions made hereinabove, the appeal is partially allowed so far as the period 2013-14 is concerned and for the period 2014-15 the same is remanded for the purpose of calculation of duty for the normal period alongwith interest, if any. (Pronounced in open Court on 19.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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