[2016-TIOL-2520-CESTAT-DEL] Commissioner of Central Excise, Raipur vs. M/s Hira Ferro Alloys Ltd, Unit-II

Allegation of suppression is not sustainable when the information is
declared in balance sheet which is publicly available documents.

Facts

The appellant acted as an
intermediary between two companies 
and  received  brokerage 
for  such  services on which no service tax was
discharged. The lower authorities confirmed the demand under business auxiliary
service and the Commissioner (appeals) set aside the demands as being
timebarred, considering the fact that the departmental authorities were in
knowledge of the activity undertaken at the time of their departmental audit in
the earlier years. Accordingly, the revenue was in appeal.

Held

The tribunal noted that the
appellant acted as a commission  
agent   and   therefore  
service   tax   was payable under the category of business
auxiliary service. However, it was observed that the same issue of non­ payment
was not raised earlier during the departmental audit. Moreover, it was not in
dispute that receipt of brokerage was declared in the published balance sheet
of the company. Thus,  once the information
was declared in balance sheets which are publicly available documents, the
allegation of suppression is not sustainable and accordingly, the revenue’s
appeal was dismissed.