1. P.C. Paulose, M/s. Sparkway Enterprises Vs. Commissioner of Central Excise & Customs, CIVIL APPEAL NO. 483 OF 2011, DATED : 13.01.2011, SUPREME COURT OF INDIA
HELD,
12.Under the terms and conditions set out hereinbefore of the agreement the appellant is authorized to provide all the services as mentioned therein and, therefore, as per the statutory definition the appellant steps into the shoes of AAI for the service provided on the basis of the authorization and becomes liable to pay such taxes in terms of the operation of Section 65 Clause 105 (zzm) of the Finance Act, 1994.
Brief fact of the case:
2. The issue that falls for consideration in this appeal is whether the appellant, who is a licencee, could be held liable for payment of service tax when actually the service provided by them could and should be said to be provided by the Airport Authority of India (for short “AAI”). It was contended on behalf of the assessee that the role of the licensee-appellant was the role of an agent and was therefore limited to collecting of fees for the services rendered by AAI.
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2. M/S BAJAJ TRAVELS LTD. Vs. COMMISSIONER OF SERVICE TAX, DATED : 03.08.2011, CASE NO. CEAC-06 OF 2009 CEAC-07 OF 2009, HIGH COURT OF DELHI
Held,
22. We are, thus, of the opinion that it was not a case of imposition of penalty upon the appellant. We answer the questions of law no. 1 & 2 in favour of the appellant and against the Revenue. As a result, penalties imposed upon the appellant under Section 76 and 78 of the Finance Act are hereby set aside.
Brief Fact of the case:
4. The appellant submitted a detailed written reply dated 17th November, 2005. The defence was that it was paying service tax as per its bona fide understanding that the service tax was to be paid on the commission retained by the appellant. It was pleaded that the matter of calculation was not clear to it. Therefore, it had been filing its service tax returns on the basis of the commission retained by it and the correct method of computing the service tax was pointed out by the visiting team of the department. Therefore, the allegation of suppression, mis-statement were wrongly attributed to it.
The learned Senior Counsel for the appellant also referred to series of orders passed by the various Benches of CESTAT where such penalties were set aside holding that when the service tax/short-service tax was paid before the show cause notice, it was a bona fide error.
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