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TMI Blog2024 (5) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax on such category and also filed ST-3 Returns for the period April 2007 to March 2012. On verification of records, it was noted by the Department that the appellant is collecting subscription, Donation and Entrance Fee from their members and did not discharge service tax under the category of "Club‟s or Association‟s Membership Services". Further, the appellant was supplying Tanker Lorries to M/s. BPCL and collected Lorry freight. The appellant though was liable to pay service tax under „Supply of Tangible Goods Service‟ on such freight charges collected by them had not discharged service tax. Again, the appellant received amounts from M/s. BPCL in the name of dealer commission, turnover discount, etc., and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal Authority and also allowed the appeal of the Department thereby imposing additional penalty of Rs.200/- per day till the date of taking registration as contemplated under Section 77(1)(a) of the Finance Act, 1994. Aggrieved by such order, the appellant is now before the Tribunal. 2.1 The Ld. Consultant Shri V. Ravindran appeared and argued for the appellant. In respect of rental income received from M/s. BPCL as well as Mandap Keeper Services, the Ld. Consultant submitted that the appellant is not contesting the issue and has already discharged the service tax. 2.2 In respect of subscription and entrance fee received from members and new members, the Ld. Consultant submitted that the amount cannot be subject to levy of service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale of fuel. It cannot be treated as discount and commission and is only in the nature of reimbursement of the price difference. 2.5 The appellant had paid the commission on Demand Draft for the transaction entered between M/s. BPCL and such DD commission was reimbursed by M/s. BPCL. These amounts being only reimbursable expenses cannot be subject to levy of service tax prior to 2015. 2.6 The demand of service tax on the amount received by the appellant from M/s. BPCL for sale of fleet cards also cannot be subject to levy of service tax, for the reason that the appellant has not collected any mark-up while selling the fleet cards to the customers. The appellant has merely received the amount as per the cards from M/s. BPCL. This was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y do. 5.2 The Department has confirmed the demand of service tax under Supply of Tangible Goods Services. The appellant has received freight charges from M/s. BPCL for supply of Lorries for transport of petrol. Even as per the Show Cause Notice, it is seen that the appellant has collected only freight charges. The appellant has not collected any amount as hire charges in addition to the freight charges. Further, the service tax on the freight charges has been paid by M/s. BPCL who is the service recipient. The Tribunal in the case of M/s. Erode Lorry Owners Association (supra) had considered the issue on very similar set of facts and held that the demand of service tax under Supply of Tangible Goods Services cannot sustain. Following the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CL. The appellant has not been given any consideration for sale of fleet cards, we find that the actual amount received from M/s. BPCL for sale of fleet cards cannot be subject to levy of service tax. The demand under this head is set aside. 5.6 The Show Cause Notice has been issued invoking extended period alleging suppression of facts with intent to evade payment of service tax. The Department has not established any positive act of suppression on the part of the appellant. The entire figures have been obtained from the accounts maintained by the appellant. This apart, most of the amounts do not fall under the category of taxable service. For this reason, we hold that the invocation of extended period cannot sustain. 5.7 The appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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