Commissioner of Central Excise, MumbaiV Respondent Appearance: Shri M.H. Patil, Advocate for Appellant Shri A.B. Kulgod, AC (AR) for Respondent SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 19.10.2016 Date of Decision: 02.12.2016 ORDER NO. Per: M.V. Ravindran This appeal is directed against OrderinOriginal No. 288/19/V/2011/COMMR/KS/ST dated 30.9.2011 passed by the Commissioner of Central Excise, MumbaiV. 2. Heard both sides and perused the records. 3. The issue that falls for consideration is whether the appellant is required to discharge the Service Tax liability on the amount received as commission during the period July, 2003 to February, 2007 in respect of the goods sold by them. 4. The appellants herein were selling various items like Suraksha LPG Rubber Hoses, Suraksha LPG Hose as per ISO 9573 etc. through their distribution network; appellant received an amount as a commission from the manufacturer of LPG Hose. It is the case of the Revenue that the amount received by appellant would be taxable under the category of Business Auxiliary Services. Initially the appellant resisted the demand but subsequently paid the Service Tax along with interest. 5. Learned Counsel appearing for the appellant would submit that the identical issue was before this Bench in the case of Bharat Petroleum Corporation Ltd. in Appeal No. ST/689/11, wherein the Bench upheld the demand of Service Tax liability and interest thereof but set aside the penalty imposed under Section 78 by invoking provisions of Section 73(3) of the Finance Act, 1994. The learned Counsel also relied on the decision of the Tribunal in the case of Commissioner of Central Excise, Patna Vs. Advantage Media Consultant 2008 (10) STR 449 (TriKol), which has been upheld by the Hon'ble Supreme Court as reported at 2009 (14) STR J49 (SC). He would submit that the appellant had discharged the balance interest of Rs.5 lakhs subsequently. 6. Learned AR submits that an identical issue came up before the Bench in the case of Hindustan Petroleum Corporation Ltd. Vs. Commissioner of Central Excise, Mumbai  2015 (38) STR 131 (TriMum) and the Bench upheld the penalties imposed on the appellant thereunder and produced a copy of the said order. 7. After considering the submissions made by both sides, it is noticed that the issue in this case is regarding Service Tax liability on the amount received by the appellant as commission for selling branded hoses of some other manufacturer. It is not disputed that the appellant had discharged the Service Tax liability and interest thereof (though partial amount of interest was discharged belatedly) on being pointed out by the Revenue authorities. We find that the similar cases have been booked by the authorities against all the Oil Marketing Companies and Service Tax liability has been discharged and Tribunal has been taking a view that the penalty need not be imposed on the PSUs. We perused the agreement in the case in hand and find that the agreement does not indicate that the appellant is required to discharge Service Tax specifically. We are recording this as in the case of HPCL (supra) as produced by the learned AR, the Bench took a call of upholding the penalties imposed at the HPCL, only on the ground that the agreement in that case specifically indicated that the HPCL will get the commission inclusive of Service Tax as applicable. In the case in hand, such clause is absent in the agreement and we are of the view that during the relevant period there could be a doubt as to whether Service Tax liability arises on the amount received as commission on the sale of items manufactured by someone else or otherwise. In our view, this is a fit case for invoking the provisions of Sec