TaxTMI 
TaxTMI 
2014 (3) TMI 653
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....eferred against an adjudication order dated 1.11.2010 passed by the Additional Commissioner, Central Excise Commissionerate, Jaipur-I. The appellate Commissioner confirmed the demand of service tax, interest and penalties assessed by the primary authority. 3. Proceedings were initiated by a Show Cause Notice dated 23.10.2009 clearly attributing/alleging that the appellant, a housing finance Company and a subsidiary of the Bank of Baroda had provided business auxiliary service, a taxable service defined in Section 65(19) of the Finance Act 1994 (the Act); had received consideration from its customers towards fee for permitting pre-closure of loans; had failed to disclose the consideration so received in its ST-3 returns; failed to remit the....
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....ation for obtaining registration and replying to the audit objection which is the basis for Show Cause Notice, it had maintained that it was rendering business auxiliary service. This is a clearly erroneous reproduction of the appellant's response to the Show Cause Notice. In its reply dated 23.11.2009 (to the Show Cause Notice), the appellant had clearly contended that pre-closure charges collected by it from customers does not amount to the taxable business auxiliary service. Additionally the appellant had contended that the service would not fall within the ambit of Banking and other Financial Services either. In its response dated 8.5.2009 to Revenue's letter dated 1.4.2009, the appellant asserted that it had provided no taxable service....
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....e appellate authority agrees with the findings of the primary authority that after the introduction of self assessment system under the Act, the responsibility of classification is on the assessee; and that whether it be business auxiliary service or Banking and other Financial Services, since both were in operation during the material time and the rate of service tax is also identical, the correct classification of the service is of no consequence. According to the appellate Commissioner there is therefore no error in the primary order, warranting appellate interference. On these generic premises, the appeal was rejected. 8. From the material on record, it is clear that neither the primary nor the appellate authority chose to specify unde....
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....rder nor even the appellate adjudication order have either alleged or recorded a conclusion that the services provided by the appellant/customer fall within the ambit of Banking and other Financial Services. At any rate, the Show Cause Notice clearly specified that the appellant had provided only business auxiliary service. There was not even a whisper of an allegation that alternatively the services provided by the appellant may be classifiable as Banking and other Financial Services. 11. Since confirmation of the demand of service tax is unsustainable on the ground of classification itself we are not inclined to undertake a detailed analysis of the other contention of the appellant, that the proceedings are unsustainable for unwarranted ....