Page 14 - GSTL_2nd July 2020 _Vol 38_Part 1

xii GST LAW TIMES [ Vol. 38
DEMAND :
— and penalty - Service Tax deposited by appellant but by mistake
deposited in the Registration No. of one of the Directors, obtained by him
for his own Proprietary Concern - Admittedly, No Objection Certificate
when given by the said Director, such deposit made by appellant to be
treated as having been made in his own Registration No. especially in the
absence of any dispute to the fact of payment of Service Tax, demand and
imposition of penalty not sustainable - Sections 73 and 77 of Finance Act,
1994 — Sai Video Broadcast Pvt. Ltd. v. Commissioner of CGST, Mumbai East (Tri. -
Mumbai) ........................................ 38
— Business Auxiliary Service - Bare perusal of order passed by
Commissioner (Appeals) in Appeal No. 287 reveals that demand of
Service Tax under category of “business auxiliary service” by similarly
situated assessee, set aside - Once Department permitted said order to
attain finality, urging that assessee required to pay Service Tax on
“business auxiliary service”, cannot be permitted - Section 65(19) and
65(105)(zzb) of Finance Act, 1994 — Niraj Prasad v. Commissioner of C. Ex. & S.T.,
Kanpur (Tri. - All.) .................................... 78
— Confiscation and penalty - Misdeclaration of quantity - On inspection of
vehicle in Transit and physical verification of contents, goods, i.e., Marble
Slabs, Granite Slabs and Granite Patti, were found in excess than quantity
declared in accompanying documents - Appellants contenting that since
goods are of irregular size, billing to customer is done as per actual
recoverable quantity after cutting - This plea not acceptable because of
abnormal difference between quantity declared and quantity recovered -
Wastage after cutting cannot be 100% - As regards challenge to
measurement, records indicate that verification of goods was carried out
in presence of appellant and Driver of vehicle both of whom appended
their signatures on FORM GST MOV-04 prescribed for this purpose -
Appellant had accepted excess quantity on this Form, a copy of which
was also given to him - In view of above, demand of GST, confiscation of
goods and penalty on appellant sustainable - Sections 73 and 130 of
Central Goods and Services Tax Act, 2017 — In Re : Deepesh Gupta (Commr.
Appl. - GST - Raj.) .................................... 117
— Customs House Agent Service - Assessee acting as pure agent engaged in
arranging services of CHA for clearance of import and export of cargo on
behalf of clients - Revenue aggrieved by impugned order dropping
demand raised, on ground that assessee not covered under definition of
Customs House Agent under Section 65(35) of Finance Act, 1994 - HELD :
Show cause notice ambiguous inasmuch as same not disclosing whether
contravened value related to CHA service or clearing and forwarding
agent service or to some other service - Further, Commissioner correctly
held that service provider can be called as Customs House Agent, if
granted licence temporarily or otherwise, under CHA Regulation made
under Section 142(2) of Customs Act, 1962 - Assessee registered as
Customs House Agent by Service Tax Department even though same
contrary to provisions of Finance Act as evident from definition of
Customs House Agent under said Section 65(35) ibid and taxable services
under provisions of Section 65(105) ibid - Although certain amount
recovered from clients towards service provided need to be
appropriated, extra amount collected, i.e., various expenses incurred for
services like documentation expenses, crane handling charges, labour
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