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TMI Blog2024 (3) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the services of Air Travel Agent, Rail Travel Agent, Tour Operator under Section 65 of the Finance Act, 1994 (referred to as the Act). Prior to 01.04.2014, the appellant had separate registration for each of its branches throughout India and w.e.f. 01.04.2014 it is centrally registered at New Delhi. 3. That the appellant during the course of providing the services of 'Air Travel Agent' also renders certain services to its clients in the nature of planning travel itinerary of the clients, suggesting better flights and flight time options, preparing department wise travel related reports (MIS Reports) i.e., number of tickets booked, number of tickets cancelled etc. for the clients, escorting the client's representative upto the point of immigration at airport etc. The appellant charges 'management fees' for rendering these services which is separately reflected on the air travel bill raised on the client. 4. That the appellant had discharged the service tax liability under Rule 6(7) of the Rules i.e. the value of services on the basic/commissionable fare 5. That the appellant while seeking Centralized Registration in compliance of the Trade Notice no.07/ST/2012 dated 25th April ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in all the branches throughout India was submitted with the jurisdictional authorities at New Delhi. She referred to the contents of the show cause notice issued in the present case referring to the earlier show cause notices and relied on the decision of the Hon'ble Supreme Court in Nizam Sugar Factory Vs. Collector of Central Excise [2008 (9) STR 314 (SC)], which has been followed in subsequent decisions. Learned Counsel also submitted that the Department is itself confused in classifying the said services under two different taxable categories involving two different assessees under the same Commissionerate and thus the Department is un-clear regarding the classification of service. Consequently, no allegation of suppression of facts with intent to evade tax is sustainable. 8. Shri Rajeev Kapoor, learned Authorised Representative for the Revenue reiterated the findings of the Adjudicating Authority and submitted that the extended period of limitation has been rightly invoked in the present case as it is a case of willful suppression with intent to evade payment of service tax. On the cross appeal filed by the Revenue, the learned Authorised Representative submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May, 2006 to September, 2008 for rendering the services towards arranging travel of clients covered under the "Business Support Services". The show cause notice was confirmed by the order-in-original dated 13.06.2011 by the Addl. Commissioner of Service Tax, Bangalore and on the same being challenged by the appellant, the Commissioner (Appeals) held the demand under the "Business Support Services" as unsustainable, observing that it is not the case of the Department that the assistance provided by them is used for the purpose of business or commerce referring to the Circular No.109/03/09 dated 23.03.2009 issued by the Board. In view of these facts, the issue of limitation is squarely covered by the decision of the Supreme Court in Nizam Sugar Factory (supra) where the Court held that the allegation of suppression of facts against the appellant cannot be sustained, when the first show cause notice was issued all the relevant facts were in the knowledge of the authorities. The Supreme Court had referred to its earlier decisions, particularly the case of P & B Pharmaceuticals Pvt. Ltd. Vs. Collector - 2003 (153) ELT 14 (SC), where the view taken was that, "in a case in which a show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisite details and pay the correct service tax amount and non-disclosure thereof amounts to suppression of material facts from the Department and therefore, the extended period of limitation of 5 years from the relevant date can be invoked under Section 73(1) of the Act. 13. That each of the grounds taken by the Department for invoking the extended period of limitation has been dealt with by a decision of this Tribunal in M/s.G.D. Goenka Pvt. Ltd. - Final Order No.51088/2023 dated 21.08.2023, where the Tribunal dealt with the reasons for invoking the extended period of limitation. One of the grounds that the appellant was operating under self-assessment and hence was under obligation to assess the service tax correctly and if it is not done, it amounts to suppression of facts with intent to evade the payment of tax was rejected for the reason that if some tax escapes assessment, Section 73 provides for a show cause notice to be issued within the normal period of limitation. Also that, this provision will be rendered otios if alleged incorrect self-assessment itself is held to establish willful suppression with intent to evade. The plea taken by the Revenue in the present case tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... houlders of the officer. It is incorrect to say that had the audit not been conducted, the allegedly ineligible CENVAT credit would not have come to light. It would have come to light if the central excise officer had discharged his responsibility under section 72. 21. This legal position that the primary responsibility for ensuring that correct amount of service tax is paid rests on the officer even in a regime of self-assessment was clarified by the Central Board of Excise and Customs 7 in its Manual for Scrutiny of Service Tax Returns the relevant portion of which is as follows: 1.2.1A The importance of scrutiny of returns was also highlighted by Dr. Kelkar in his report on Indirect Taxation 8. The observation made in the context of Central Excise but also found to be relevant to Service Tax is reproduced below: It is the view that assessment should be the primary function of the Central Excise Officers. Self-assessment on the part of the taxpayer is only a facility and cannot and must not be treated as a dilution of the statutory responsibility of the Central Excise Officers in ensuring correctness of duty payment. No doubt, audit and anti-evasion have their roles to play ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) and also by the Tribunal in M/s G. D. Goenka (supra), there is no reason for us to differ from that view and following the same, we are of the considered opinion that the department cannot invoke the extended period of limitation and therefore the demand in so far as it falls beyond the normal period of limitation is unsustainable and is accordingly set aside. 16. We may now consider the issue on merits as some period in dispute under the second show cause notice falls within the normal period of limitation. The allegation in the show cause notices is that the appellant had not revealed the amount charged towards 'management fee' which are chargeable to service tax under the category of "Business Support Services" as defined under Section 65(104c) of the Act, the provisions of the same are quoted below : "Section 65 (104c) "support services of business or commerce" means services provided in relation to business or commerce and includes evaluation of prospective customers, telemarketing, processing of purchase orders and fulfilment services, information and tracking of delivery schedules, managing distribution and logistics, customer relationship management services, accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e services in question does not fall within the scope of "Business Support Service" and therefore no service tax is leviable under the said category. 19. The next submission of the appellant is that they have been discharging their service tax liability by opting to pay under the provisions of Rule 6(7) of the Service Tax Rules, 1994 which is fixed and therefore any consideration received over and above the taxable value of service prescribed under the rules cannot be subjected to service tax under different category. The fact that the appellant has been discharging service tax under Rule 6(7) implies that they are acting as "air travel agents" and hence no further liability arises. There is no doubt that the appellant is engaged in the travel agency business and has been charged service tax under "Air Travel Agent" service as defined in Section 65(4) read with section 65(105)(l) which reads as under: - "Section 65(4) "Air Travel Agent" means any person engaged in providing any service connected with the booking of passage for travel by air; Section 65(105)(l) "taxable service" means any [service provided or to be provided], -- [to any person], by an air travel agent in relati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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