TaxTMI 
TaxTMI 
2013 (12) TMI 259
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....ained in erstwhile clause 72 of Section 65 [now clause (105) of Section 65] of the Finance Act, 1994 Superintendent, Central Excise, Ghaziabad vide his letter dated 18.04.2002 advised the appellants to comply with provisions of the Finance Act, 1994 and also to pay service tax as leviable on such services with effect from 16.07.1997. The appellants vide their letter dated 15.05.2002 confirmed to the Superintendent that they were acting merely agent of the client and their activity did not come within the purview of Section 65(72) of the said Act, as they did not undertake services, normally rendered by Clearing and Forwarding agents (C & F Agent). They further stated in the said letter dated 15.05.2002 that they provide a godown and cut, bend or bundle the steel materials for transportation purposes against some remuneration and transportation of such material, is actually done by the transporters and the remuneration received by them was for transportation of materials as also included the charges of cutting, bending and bundling of steel materials. As no evidence, documentary or otherwise was provided by the assessee to show that their activity did not fall the category of 'taxab....
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....e impugned order. 4. Ld. Advocate further points out that during the relevant period there was no self-assessment and returns filed by the assessee were required to be assessed by the officers of the Department under Section 71 of the Act and there was no provision of issuance of Show Cause Notice on the ground of suppression. Ld. Advocate submits that when Show Cause Notice dated 09.10.2002 was issued to them, there cannot be any case of issuing of subsequent Show Cause Notice and once assessment under Section 71 is done by the Department it is not permissible to initiate second assessment proceeding. He relied on that following decision on their point 1. CCE, Indore vs. Siddharth Tubes Ltd. 2004 (170) ELT 331 (Tri. Del.) 2. R.C. Fabrics (P) Ltd. Vs. Union of India, - 1995(76) ELT 9 (Del) 3. CIT, Gujarat Vs. Bhanji Jayji, 79 ITR 582 (SC) 4. Duncans Industries Ltd. Vs. CCE, New Delhi, 2006 (201) ELT 517 (SC) 5. Ld. Advocate submits that Commissioners has grossly erred in holding the first Show Cause Notice dated 09.10.2002 as infructuous as proceedings before him were not in respect of this Show Cause Notice 23.09.2007. Hearing in respect of first Show Cause Notice was held o....
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....ants are entitled to benefit of cum tax benefit while computing tax liability. 10. Regarding imposition of penalty Ld. Advocate submits that no penalty is imposable as they themselves approached the Department much before issue of Show Cause Notice and paid the amount of Rs. 33,63,170/- and it is fit case of invocation of Section 80 of Finance Act. He further submits that there is no case of simultaneous imposition of penalty under Section 76 and 78 of the Act in view of the following decision. 1. First Flight Courier Ltd. 2011 (22) STR 622 (P & H) 2. United Communications 2011 TIOL 802 HC KAR ST 3. Motor World, 2012 (27) STR 225 11. On the Revenue appeal it is submission of the appellant that appeal is not maintainable as it was filed late without any COD application and there is not documentary evidence to show that Chief Commissioner have passed the Review order on due application of mind and on the same date. 12. Ld. Additional Commissioner (AR) appearing for the Revenue submits that impugned order has been passed in pursuance of Show Cause Notice 23.09.2003 and appellants submission with regard to Show Cause Notice dated 09.10.2002 and notice under Section 71 have no re....
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....ved and notice dated 09.10.2002 was issued to them for getting correct details and in absence of details amount of service tax was not specified in the Show Cause Notice dated 09.10.2002. Notice dated 20.05.2003 was issued under Section 71(2) of the Finance Act asking the appellant for producing, books of accounts. Notice dated 20.05.2003 was not under Section 73 of the Finance Act. We find that this appeal is against the impugned order passed in adjudication proceeding of the Show Cause Notice dated 23.09.2003. It is not case of the appellants that other two notices have also been adjudicated against them on the same issues and same period. Issue whether extended period of limitation can be invoked in view of earlier Show Cause Notice issued to time will be discussed in subsequent paragraph of this order. 16. Appellants also contended that the Show Cause Notice dated 23.09.2003 cannot be issued when Show Cause Notice was already issued for the same period and appellants relying on decision of Tribunal and court in the support of this contention. 17. In case of Siddharth Tubes (Supra) this Tribunal held Show Cause Notice cannot be issued to same period on different grounds. That ....
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....is also pointed out by the appellants that first Show Cause Notice is still valid without specifying the amount of tax in view of decision of Tribunal (LB) in case of Bihari Silk & Rayon Processing mills (P) Ltd., (Supra). In this case the Show Cause Notice which was adjudicated was not specifying any amount and Larger Bench held that Show Cause Notice is not invalid for want of amount specified as other details were mentioned in the Show Cause Notice. This decision also not applicable to present case as Show Cause Notice dated 09.10.2002 is not adjudicated and is not subject matter of present appeal. 19. We are therefore of the view that the objection raised by the appellants on Show Cause Notice dated 23.09.2003 are not sustainable. 20. Now coming to merit, we find that Clearing & Forwarding Agent and taxable services are defined under Section 65(16) and 65(72) of the Finance Act. under Section 65 (16) of the Finance Act, 1994, 'C & F agent' means, any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent. As per c....