P. Anjani Kumar ORDER
S.S. Garg, Member (J)
1. The present appeal is directed against the impugned order dated 16.12.2018 passed by the Commissioner (Appeals) whereby the Commissioner (A) has rejected the appeal of the appellant and upheld the Order-in-Original passed by the Deputy Commissioner of Service Tax.
2. Briefly the facts of the present case are that the appellants have Service Tax Registration and are engaged in the activity of providing various taxable services and paying Service Tax. During the course of scrutinizing the trial balance of the assessee, for the period 04/2005 to 09/2005, they have noticed that the appellant had received an amount of Rs. 4,42,547/- towards luggage collection, driver batta and casual contract and also received commission of Rs. 17,64,100/- towards hotel booking, luggage collection hotel booking, luggage collection, driver batta and casual contract during the period 2004-05. The amount so received is liable to Service Tax under category of 'tour operator/business auxiliary service' and that the appellant have failed to discharge the Service Tax on gross value of Rs. 22,06,647/- on which Service Tax works out Rs. 2,12,776/-. The original authority after issue of SCN, confirmed the demand of Rs. 66,386/- under Section 73(2) of the Finance Act, 1994 and Appropriate Rs. 1,46,390/- which was already paid by the appellant, on 25.03.2006 out of Rs. 2,12,776/- and demanded the interest of Rs. 43,080/- and also imposed penalty of Rs. 200 per day under Section 76 of the Finance Act 1994 and equivalent penalty of Rs. 1,49,380/- under Section 78 of the Finance Act 1994 for contravention of provision of Section 67 of the Finance Act, 1994 read with Rule 6(3) of the Service Tax Rules, 1994. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A) and the Commissioner (A) has upheld the order of the Deputy Commissioner on the ground that the issue was observed by the Internal Audit Party and came to fore on scrutiny of their balance sheet. Had it not been noticed by the audit, the same would have gone unnoticed and there would have been a revenue loss and further only on receipt of SCN, they have accepted the contention and paid the Service Tax and further, the appellants have not produced any evidence in their support.
3. Heard both sides and perused the records of the case.
4. Learned counsel for the appellants submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the impugned order is contrary to the binding judicial precedent. He further submitted that the entire demand is barred by limitation. He further submitted that the Revenue has wrongly invoked the extended period of limitation of 5 years which can only be invoked in case of fraud, collusion, wilful mis-statement, suppression of facts or contravention of the provisions with intent to evade payment of Service Tax. It is his further submission that the appellant has not suppressed any information and has paid the Service Tax of Rs. 1,46,390/- on 25th March 2006 based on its calculation much before the issue of SCN which was issued on 16.01.2008. He further submitted that the Revenue has not brought any material on record to show that there was a suppression of fact on the part of the appellant who is the State Government undertaking to evade the payment of Service Tax. In support of his submission, he relied upon the decision in the case of Infinity Infotech Parks Ltd. Vs. UOI reported in MANU/WB/1348/2012 : 2013 (31) STR........