9911796707
TMI Blog2023 (11) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) that upholds the order dated 16.09.2016 passed by the Additional Commissioner and dismisses the appeal. 2. It is stated that the appellant is engaged in promoting programs of cooperative development in the country by advancing loans and advances/ grants for production, processing, marketing, storage, export and import of agricultural produce, food stuff and certain other commodities on cooperative principles and for matters connected therewith. 3. A show cause notice dated 18.04.2013 was issued calling upon the appellant to show cause as to why: (i) The Service Tax (including Education Cess and Secondary & Higher Education Cess) amounting to Rs. 44,29,910 (Rupees Forty Four Lakh Twenty Nine Thousand Nine Hundred and Ten Only) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue stands decided against the appellant by a decision of the Tribunal rendered on 06.02.2018 in Service Tax Appeal No. 4191-4192 of 2012 [National Co-operative Development Corporation vs. Commissioner of Service tax, Delhi], but the Commissioner (Appeals) committed an error in confirming the imposition of penalty under sections 76 and 77 of the Finance Act 1994 [the Finance Act]. Learned counsel further submitted that even though it was pointed out to the Commissioner (Appeals) that the Ministry released service charges amounting Rs. 3,66,93,393/- only out of total amount of Rs. 4,30,08,843/- but the Commissioner (Appeals) failed to appreciate this fact and rendered no finding on this aspect. 6. Ms. Jaya Kumari, learned authorized re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l enterprises in furtherance of their business and they did get the commission. This is not been disputed.. Claim of the party that this is a statutory act and cannot be covered by tax liability is not accepted. Commission received and accounted at the end of appellant as commission income and this is not a fee, charge or levy of the Government. The appellant is independent corporation for commercial activity. They may be mandated to act in a particular manner by the Policy of the government. That by itself will not exempt them from tax liability. 10. We have perused the appeal record and analysed Board circular clarifying on the fees collected for statutory performance. We find that there is no case for excluding income of appellant as c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are as to whether the Commissioner (Appeals) was justified in imposing penalty under sections 76 and 77 of the Finance Act and whether the contention advanced by the learned counsel for the appellant that service charges amounting to Rs. 3,66,93,393/- out of the total Rs. 4,30,08,843/- were actually released. Penalty 11. A perusal of the order dated 06.2.2018 passed by the Tribunal in National Co-operative Development Corporation indicates that in that case section 80 of the Finance Act was invoked and so penalty under sections 76 and 77 of the Finance Act was not imposed. In the subsequent decision rendered by the Tribunal on 09.09.2019, the adjudicating authority did not impose penalty under sections 76 and 77 by invoking the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... figures in relation to service charges for the period 2010-11, 2011-12 and 2012-13. The Notice clearly mentioned in the said letter that the Ministry has released no payment for the financial year 2010-11 to 2012- 13. 5. It is relevant to mention here that the Notice had been paying Service Tax (under protest) on receipt basis. In other words, the Noticee deposited Service Tax under protest as and when the Service Charges (commission of 0.5 per cent) is received from the Government of India. However, the Point of Taxation Rules ('PoT Rules') which were introduced vide Notification No. 25/2011 dated 31.03.2011, became mandatory w.e.f. 01.07. 2011. As per PoT Rules, the liability to pay Service Tax arises based upon the date of iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Noticee has already deposited Service Tax under protest amounting to Rs 35,23,527/-. Therefore, the outstanding liability amounting to Rs 2,55,892/- was discharged on vide Challan No. 50323 dated 30.11.2013. For better clarity, such details have been tabulated as under: Service Charges taken in SCN Service charges released by the Ministry Liability as per SCN (@ 10.30%) Actual Liability (@ 10.30%) Service Tax already deposited Outstanding Service Tax Rs 43,008,843 Rs 3.66,93.393 Rs. 44,29,910 Rs. 37,79,419 Rs 35,23,527 Rs 2,55,892 15. The Commissioner (Appeals), in paragraph 4 of the order, has noticed the following fact: "It was brought to notice that Show Cause Notice and adjudication has taken the value of alleged servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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