9911796707
TMI Blog2023 (6) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 commission was paid to the holding company for providing monetary guarantee to appellant's client that in case the appellant is unable to execute the work, the ultimate holding company will compensate the client and when the commission has been given to the holding company without receiving any service from them, they are not liable to pay any service tax on that commission amount. 3. The appellant herein are engaged in providing taxable services viz. "Consulting engineer services & Erection, commissioning and installation service". During the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate 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 appellant was under a bonafide belief that since no service has been received by the appellant but by its client therefore they are not liable to pay any tax and in that scenario no suppression can be attributed to the appellant. He further submits that the appellants were filing their statutory return from time to time and the department could have asked the details of anything they found irregular in the said return and since they did not raise any such objection during that period therefore they cannot invoke extended period by attributing suppressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wrong in the findings of the authorities below that 'commission' per se would fall under the ambit of the definition of 'service' (supra). After 1.7.2012 once the activity falls within 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 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 misdeclaration or wilful suppression. Therefore in view of the fact that immediately after being pointed out by the audit, the appellant paid the amount vide challan dated 20.7.2017 coupled with the fact that during the period in issue the appellant had paid the Service tax amounting to Rs.18,06,88,379/- in cash which is far more than the amount demanded and had the appellant known about the tax liability they would have paid the tax during that period itself and the credit would have been adjusted against tax payable, no suppression can be attributed to the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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