9911796707
TMI Blog2023 (10) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax of Rs. 1,53,979/- alongwith interest under Section 75 of the Finance Act, 1994. The Ld. Commissioner (Appeals) has also imposed equal penalty under Section 76 and 78 of the Finance Act, 1994 and also penalty of Rs. 1,000/- under Section 77 of the Finance Act, 1994. 2. Briefly the facts of the present case are that the appellant was engaged in maintenance & handling of corporation owned and contractor operated (COCO) retail outlet site of M/s Indo British Petroleum Ltd., Panipat (merged with IOCL in May, 2007) at Arya Nagar, Hisar from where petroleum products, mainly motor spirit and High-Speed Diesel are sold. For the said arrangement, an Agreement dated 01.09.2005 was entered between IBP Co. Ltd. and the appellant. * Revenue ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y PIO & Dy General Manager (E), Delhi State Office of IOCL vide its reply dated 07.09.2010 pursuant to RTI filed by the Appellant. He further submitted that the appellant has also filed a copy of ITR for the Financial Year 2003-04 & 2004-05 which shows that there was no income of the Appellant from M/s IBP Co. Ltd. in these years. * Ld. Consultant further submitted that the appellant is eligible for SSI Exemption for the period from September 2005 to march 2007 because there charges are less than 4.00 Lacs in a Financial Year and as per the SSI Exemption provided under Notification No. 06/2005 S.T. dated 01.03.2005, the appellant are not liable to pay any tax for the said period and this fact is fortified from the reply received in pursua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an individual and not a commercial concern. For this submission, he relied upon the following decisions - C.S.T., New Delhi v. Kamal Lalwani, cited in 2017 (49) S.T.R. 552 (Tri. - Del.) Pratap Singh Jyala v. Commissioner of C. Ex. & S.T., Meerut - II, reported in 2015 (40) S.T.R. 333 (Tri. - Del.) C.S.T., New Delhi v. Jitender Lalwani, cited in 2017 (51) S.T.R. 312 (Tri. Del.) Circular No. 62/11/2003-S.T., dated 21.08.2003 * Ld. Consultant further submitted that the revenue has wrongly invoked the extended period of limitation by alleging that the appellant did not pay tax, nor got service tax registration and did not file any Service tax returns. He further submitted that mere non- payment of tax or non-filing of Service tax re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pay the tax, did not get the registration and did not file the service tax returns. He further submitted that the appellant is not entitled to SSI exemption as they fall under the proviso to the exemption because they are providing branded services. 6. After considering the submissions of both the parties and perusal of material on record, we find that the demand of service tax for the period from 1st April 2003 to March 2005 is prima facie wrong because the appellant has started rendering services to M/s IBP Co. Ltd. from 01.09.2005 as is clear from the agreement dated 01.09.2005 which has been accepted in the order-in-original. 6.1 Further, we find that the appellant is entitled to SSI exemption for the period 2005-2006 because their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal has observed that no agreement was produced by the appellant, however, on the contrary, in Para 11 of the Order-in-Original itself accepted that the appellant had produced copy of Agreement dated 01.09.2005. Both the orders have been passed without appreciation of complete facts. 6.7 Further, we also find that the hearing took place before the Assistant Commissioner as per the hearing notice but the order-in- original has been passed by the Deputy Commissioner and this fact was raised before the Ld. Commissioner (Appeals) but he did not give any finding on this issue. 7. In view of our discussion above, we hold that in the present case, the entire demand is barred by limitation and we also hold that the appellant was entitled to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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