K.S.JHAVERI,J. - (1.) By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby tribunal has dismissed the appeal of the assessee.
(2.) This court while admitting the appeal on 5-9-2013 framed following substantial questions of law:- "(i) Whether in the facts and circumstances of the case even if it held to be a service, it is a service of the kind mentioned in clause (i) to (vii) of Section 65(105)(zzb)? (ii) Whether in the facts and circumstances of the case, the transaction of purchase and sale of liquor falls within the ambit of service under section 65(19) read with 65(105)(zzb) of the Act?"
(3.) The facts of the case are that the appellant a Government of Rajasthan Undertaking, registered under the Companies Act, 1956 is entrusted by the State Government with the business of purchase of IMFL and Beer (liquor) from manufacturers, transport of liquor to various depots of the appellant and for further sale thereon to various licensee (i.e. with the wholesale trade in liquor), with a view to regulate supply of liquor through conferring the exclusive privilege of purchase and sale in the wholesale thereof upon the appellant. As a consequence of the monopoly assumed by the State Government in this area and confirment of the privilege on the appellant, it is mandatory for all manufacturers/distilleries/suppliers to sell liquor in the State only through the canalising agency, namely the appellant. 3. 1 In the admitted factual scenario the appellant is registered as a Service Tax provider, had filed returns of Service Tax; nor had remitted Service Tax. 3. 2 Intelligence gathered by Revenue revealed that the appellant collected a commission of Rs. 45,06,33,440/- during the period 1-2-2005 to 31-8-2007 but failed to remit Service Tax amounting to Rs. 5,21,25,843/-. Consequently Revenue addressed letter dated 23-8-2007 and 16-11-2007 calling upon the appellant to produce the relevant documents/information. After some intermediary correspondence and furnishing of information by the appellant, on 1-11-2007 the appellant provided depotwise sale details of liquor and commission earned by the appellant, to Revenue. On the basis of information received. Revenue assumed that the appellant had provided the taxable Business Auxiliary Service (BAS) to manufacturers of liquor/distilleries and issued the show cause notice dated 11-7-2008, in substance alleging that the appellant had provided the taxable BAS and had willfully suppressed information regarding liability to Service Tax by failing to file returns, disclosing the income received and failing to remit Service Tax, with an intent to evade payment of Service Tax. The show cause notice proposed assessment and levy of Service Tax, interest and penalties. The show cause notice proposals were confirmed by the adjudication order, after a due process of considering the appellant's response, analysis of the material on record and hearing the appellant. ;