BEENA GOYAL Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE Appellant is a proprietorship concern acting as a stock broker and paying service tax under the said category of service. On verification of their records conducted on 14 -12 -2005, it was found that they were also providing services of sub -brokers and on commission received on such activity they were not paying service tax. It was also found that they were providing services of marketing of public issue of shares by companies and were receiving commission for such activity. Such activity was taxable under the category of Business Auxiliary Services but the appellant was not registered under the said category and was not paying service tax. In a statement recorded from Shri K.G. Goyal, the Manager of the concern he agreed to pay service tax amount of Rs. 19,153/ - towards stock broker service short paid for the period April 05 to Sep. 05. The appellant paid such tax on 21 -12 -2005. The liability of Rs. 5,601/ - under business auxiliary service was disputed. Later the Department issued Show Cause Notice dated 4 -5 -2006 demanding tax short paid amounting to Rs. 24,754/ - and proposing appropriation of tax already paid along with interest and penalty. The notice was adjudicated confirming tax demand of Rs. 24,754/ - along with interest, and imposing penalty of Rs. 24,754/ - under Section 76 and Rs. 1000/ - under Section 77 and Rs. 24,754/ - under Section 78 of the Customs Act. Option was given to the appellant to pay 25% of the penalty under Section 78 within 30 days of receipt of the order. The appellant did not avail of the option. Aggrieved by the order the appellant filed an appeal with Commissioner (Appeals) who rejected their appeal. Aggrieved by the order of the Commissioner (Appeals) appellants have filed this appeal before the Tribunal.

(2.) The appellant submits that the short payment of service tax under the category of Stock Broker Service was occurred due to a human error and there was no intention to evade payment of tax. The appellant submits that the entire information was available on the computer of the firm and hence it is wrong to infer that the appellant had intention to evade tax. Therefore it is argued that the penalty imposed on this count is not warranted.

(3.) IN the matter of Business Auxiliary Service it is the contention of the appellant that during the relevant time services rendered by a commercial concern only was taxable under the said category. The appellant was a proprietorship firm and there was no tax liability under this category and that is the reason for not paying tax. The appellant relies on the Circular No. /10/2004 -S.T., dated 17 -9 -2004 issued by C.B.E. & C. reading as under: