We do not see any merit in the argument of the appellants that they were only an intermediary and not doing the work themselves and hence their activities did not amount to any service. Any service provided in relation to installation of electrical and electronic devices, including wirings or fittings, became taxable from 16-06-05.
When we read meaning of consignment note with the taxing entry under section 65 (105) (zzp) of the aforesaid Act it is inconceivable to bring the bullock carts transporting sugar cane to the fold of law, since law requires the transport made by goods carriage should only be brought to tax.
In the instant case instead of foreign exchange going out of India, there is conservation of foreign exchange in India to the extent of commission earned by the service provider appellant in view of the arrangement made by the service recipient abroad in that behalf through Indian Railways. Instead of appellant earning foreign exchange, the foreign exchange which otherwise would have flown out of India, due to import by Indian Railways, has been conserved. This appears to have fulfilled the object of export of service.
Ld. AR submits that appellant was not registered as service tax payer and as such no authorised representative stands mentioned by him. As the impugned order was served at the residential address of the appellant, it has to be considered as proper service of the order.
Finance Minister in para 149 of the budget speech while introducing the entry for tax on Goods Transport Agency in the budget of 2004. It appears that there was clear intention not to levy service tax on individual truck owners except in cases where the cargo for such trucks are booked by Goods Transport Agency which is in the business of booking cargo and issuing the consignment note in the normal course of their business.
The appellant Rajasthan Cricket Association organises cricket matches in various places in Rajasthan and they allow different parties to put up advertisement in the stadium in which matches are being organised, and they have been collecting charges for selling such advertisement space. Revenue made out a case that Appellant should have paid service tax under the taxable entry in Section 65(l05)(zzzm) which covers sale of space for advertising.
Thus according to judgment of Hon’ble High Court of Punjab & Haryana in Mohan Bottling Co (P.) Ltd.’s case (supra), it can safely be said that sending the order at correct address by registered post is a sufficient compliance of section 37-C of Central Excise Act, 1944 and it is for the assessee to rebut the presumption of service by cogent evidence that in fact order was never served upon him. The appellant in the present appeal in hand failed to discharge its burden of proof, we are able to notice this is a case of service on any authorized person, nor the case of closure of factory nor the case of rebuttal of presumption of by appellant.
So far as the penalties are concerned, we do appreciate that the learned Commissioner has considered waiver but the reasoning for the waiver is not acceptable to us. We make it clear that when there is a levy of tax, liveability of penalty depends on the facts and circumstances of each case. The reimbursement issue has travelled with lot of controversies till conclusions by Larger Bench. Learned Counsel says even the dispute has gone to Apex Court. Appreciating the difficulties faced by the assessee at the infancy stage which is reasonable cause, there shall be no levy of penalty under sections 76 and 78 of the Finance Act, 1994, in the present case. But we confirm penalty levied under section 77 of the said Act, since liability for payment has ensued with obligation for registration arose.
Perusal of the show-cause notice indicates that the appellant had realised service tax from his client but did not deposit. The mitigating factors of financial condition and illness could have been received consideration, had the appellant not realised service from its clients. Since service tax was realised and that was with the appellant, keeping such public money the appellant does not require any consideration for total waiver of penalty. Only looking to the cooperative attitude of the appellant, it may not be proper to penalise under section 76 and 78 of the Finance Act, 1994. Simultaneously, to remove hardship, it would be proper to direct the appellant to deposit 25% of the demand towards penalty under section 78 of the Finance Act 1994 within 30 days of receipt of this order. If there is no deposit, this order shall stand vacated and Revenue shall be free to realise its entire dues in accordance with law.
Counsel submits that service of the courier was used for dispatch of the samples to abroad. When courier service is connected with export and relevancy thereof was not doubted, the appellant cannot be denied relief of credit relating to tax paid for appropriate consequence under different law. Ld. Commissioner (Appeals) without looking into strength of evidence filed, recorded that the appellant failed to correlate the invoices by the courier services with the export of goods.
