Commissioner Of Ce & Customs vs M/S Pioneer Associates

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. I

Appeal No. ST/67/11

(Arising out of Order-in-Appeal No. SR/400/NGP/2010 dated 02.11.2010 passed by Commissioner of Central Excise and Customs (Appeals), Nagpur)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

Commissioner of CE & Customs Nagpur Appellant Vs.

M/s Pioneer Associates Respondent Appearance:

Shri A.B. Kulgod, Asst. Commissioner (AR) for appellant None

for respondent CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing: 20.08.2015 Date of Decision: 20.08.2015

ORDER NO

Per: M.V. Ravindran

This appeal is filed by the Revenue against the order-in-appeal No. SR/400/NGP/2010 dated 02.11.2010 which has set aside the demand confirmed by the adjudicating authority.

2. None appeared on behalf of the respondent-assessee. Since the issue involved lies in a narrow compass, we take up the appeal for disposal even in the absence of any representation from the respondent-assessee.

3. After hearing learned D.R. and perusal of the records, it transpires that the issue is regarding service tax liability for the period October 2004 to September 2009 as also on the commission received by the respondent from BSNL for the sale of SIM cards. We find that show cause notice has been issued on 16.04.2010 by invoking extended period from October 2004 to September 2009. Adjudicating authority has held that such activity would fall under Business Auxiliary Service and confirmed the demand but the first appellate authority set aside the demands.

4. Learned D.R. was correct in bringing to our notice that identical issue has been decided by this Bench in the case of CCE v. Prakash R. Jaiswal vice versa in Appeals No. ST/278 and 284/2010 vide final order No. A/1831-1832/15/STB dated 04.06.2015. We find that in the case of Prakash R. Jaiswal (supra) on the issue of service tax liability on discharge coupons we recorded as under and held against the assessee therein holding that the service tax liability arises:-

4.1 As regards the service tax liability in respect of Sl. (a) herein above, we find that the issue is regarding the service tax on BSNL recharge coupons which is settled in favour of revenue by the decision of the Kerala High Court in the case of Idea Mobile Communication Ltd.  2010 (9) STR 18 (Ker) and upheld by Apex Court. During the period in question, the issue was agitated before various judicial forum and there were many conflicting views by various benches.

4.2 As regards the service tax liability under Business Auxiliary Service wherein the appellant  assessee in this case could have entertained bonafide belief as to that he is not liable to discharge the service tax liability.

4.3 We find that the show-cause notice dated 16.10.2008 was issued by invoking extended period for demand of service tax from 01.07.2003 to 31.03.2008. In our considered view, invocation of extended period in this case seems to be incorrect as the issue was being agitated before the judicial forum. Accordingly, we hold that the show-cause notice which invokes the extended period for demand of service tax from the appellant-assessee needs to be set aside and we do so. However, for the demand within the period of limitation from the date of issuance of show-cause notice we hold that the appellant-assessee is liable to pay the service tax liability along with interest. To that extent we reject the appeal filed by the appellant-assessee.

4.4 As regards the penalty imposed, we find that the appellant-assessee could have entertained a bonafide belief on the service tax liability on the recharge coupons as there were many conflicting decisions by the Tribunal, a view could be taken that appellant assessee need not be visited by penalties.

The above ratio of the judgement of this Tribunal squarely covers the case in hand and we hold that the service tax arises within the limitation period and the respondent-assessee is liable to pay the service tax along with interest.

4. The appeal is disposed of as indicated herein above.

(Dictated in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

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