2019 (5) TMI 915 - AT - Service Tax

Revenue appeal dismissed, Show Cause Notice dropped due to improper drafting and lack of evidence.

The Tribunal dismissed the revenue's appeal and upheld the Commissioner's decision to drop the Show Cause Notice. It was found that the Notice was ... Scope of SCN - Management, Maintenance and Repair Services - the appeal filed by revenue refers to 94 contracts that were subject matter of show cause notice, whereas we found that only twelve were referred to in show cause notice - HELD THAT:- Since the appeal filed by revenue refers to 94 contracts that were subject matter of show cause notice, whereas we found that only twelve were referred to in show cause notice, Authorized Representative appearing for revenue was directed by us to produce the complete adjudication file and the review file for examination. However even after adjournment of the matter twice the same could not be produced. Learned Authorized Representative produced a letter dated 12.12.2018 of the Additional Commissioner (Review) CGST Mumbai West stating that the said files cannot be traced - Since the revenue has failed to produce the files which are not traceable, we are not in position to accept the contention of the revenue that there were 94 contracts under consideration in show cause notice. Hence the matter needs to be limited to the contracts referred to in show cause notice. Respondents had contended before the Commissioner that they had during the period of demand received payments against the services which were provided during period prior to the period of demand. Hence this has formed the basis of the finding for the Commissioner to the effect that the demand has been based on the Balance Sheet figures and not the figures of actual receipts against the taxable services provided during this period. In the appeal revenue has not disputed the findings rendered by the Commissioner in respect of the twelve contracts referred in the show cause notice, the only reason by which the revenue is aggrieved is that the findings in respect of twelve contracts have been applied to the contracts under consideration and commissioner should have examined all the contracts and rendered the findings individually. We do not know from where revenue authorities got the magical figure of “94 contracts” it is not in the show cause notice or in impugned order. When we tried to decipher the mystery revenue expressed its inability to produce the files of adjudication and review. In absence of any tangible evidence to the effect that there were 94 contracts under consideration while making the demand we reject the said contentions raised by the revenue in their appeal. Revenue has not challenged the findings recorded by the commissioner on merits but have questioned the manner in which he have gone about dealing with the show cause notice. The major challenge which has been made is with regards to examination of 94 contracts which we are unable to find - thus there are no merit as all the issues raised in the show cause notice have been well considered by the Commissioner in the paras of impugned order referred. Appeal dismissed - decided against Revenue. Issues Involved:1. Validity of the Show Cause Notice.2. Classification of services under 'Management, Maintenance or Repair Services.'3. Basis for demand calculation.4. Applicability of the extended period of limitation.Detailed Analysis:1. Validity of the Show Cause Notice:The Commissioner dropped the Show Cause Notice (SCN) as not maintainable, both in fact and law. The revenue argued that the SCN was not elaborate enough but that should not be a reason to drop it. The Commissioner found that the SCN was improperly drafted and lacked adequate material and evidence to support the allegations. The Tribunal upheld this finding, noting that the SCN did not properly consider and discuss the relevant evidence.2. Classification of Services:The revenue contended that the services provided by the respondents fell under 'Management, Maintenance or Repair Services' and thus were taxable. The Commissioner examined the nature of activities mentioned in the contracts and concluded that they did not fall within this category. The Tribunal agreed, stating that the Commissioner had thoroughly examined the contracts and the definition of taxable services, and correctly concluded that the services did not qualify as 'Management, Maintenance or Repair Services.'3. Basis for Demand Calculation:The Commissioner found that the demand was based on figures from the respondent's balance sheets rather than actual receipts for services provided during the period in question. The Tribunal noted that the respondents had received payments for services provided prior to the taxable period, and thus the demand based on balance sheet figures was not valid. The Commissioner’s observation that the demand was not based on actual receipts was upheld by the Tribunal.4. Applicability of the Extended Period of Limitation:The revenue argued that the extended period of limitation was applicable because the facts came to light only after investigations. The Commissioner, however, found no grounds for invoking the extended period, as the information was disclosed during the investigation. The Tribunal upheld this finding, agreeing that the extended period of limitation was not applicable.Conclusion:The Tribunal dismissed the appeal filed by the revenue and upheld the Commissioner’s order, which dropped the SCN. The Tribunal agreed that the SCN was not maintainable, the services did not fall under 'Management, Maintenance or Repair Services,' the demand was improperly calculated based on balance sheet figures, and the extended period of limitation was not applicable. The cross objections filed by the respondents were disposed of accordingly.