TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 810
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....eceived, it was processed and examined by the authorities. This took time and thereafter, the file was marked to the Standing Counsel for drafting of the appeal. The annexures to the appeal however got misplaced in the office of the Standing Counsel and it took time to trace the same from other files. 3. Keeping in view the aforesaid facts, we condone the delay of 38 days in filing the appeal. The application stands disposed of. CEAC 31/2014 4. This appeal filed by the revenue impugns findings recorded in the order dated 24th July, 2013 [2014 (33) S.T.R. 67 (Tri.-Del.)], passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) (Tribunal, in short), in an appeal filed by the respondent-assessee. By order dated 4th April, 2014, the following substantial question of law was framed for adjudication : "Did the Tribunal fall into error in rejecting the Revenue's appeal, holding that the Show Cause Notices in question were not in accordance with law." 5. We have heard learned Standing Counsel for the revenue and the counsel for the assessee. 6. In order to decide and adjudicate the aforesaid substantial question of law, necessary facts in brief a....
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....6-2005, but, it is apparent, that this was done to elucidate and state that services covered under 'Business Auxiliary Services' were widened and made more comprehensive after 16-6-2005. After reproducing the amended Section 65(19) w.e.f. 16-6-2005 of the Finance Act, the show cause notice refers to agreements entered into between the assessee and the service receivers namely M/s. Srinivasa Resorts Ltd., M/s. Laxmi Distributors P. Ltd., Adyar Gate Hotels owner of Park Sheraton Hotels and Grand Bay. It is stated that M/s. Srinivasa Resorts Ltd. and M/s. Laxmi Distributors P. Ltd., after expansion of taxable services in the category of 'Business Auxiliary Services', had agreed to make payment of service tax but Adyar Gate Hotels owner of Park Sheraton Hotels and Grand Bay refused to pay service tax on the plea that the service tax was not applicable at the time of signing of the agreements. It was observed in the show cause notice dated 21-4-2010 that the said contention was not acceptable. Further, the assessee has stopped payment of service tax, under the category "management fees" from April, 2008 onwards. The show cause notice records that the services rendered by the respondent-....
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....2012. The reproduction can be found in the said order of Commissioner of Service Tax under the heading 'Submissions by the Noticee' in para 12 and sub-paras thereto. In sub-para 1 of para 12, the respondent-assessee has accepted that they were earlier paying service tax under the head 'Management Consultancy Services', but this was on mistaken interpretation of law. It was submitted that the assessee had filed a refund claim as the service tax paid under the head 'Management Consultancy Services' was paid erroneously. In para 3 of the reply, reference was made to para 7 of the show cause notice wherein, details were given with regard to the agreements entered into between the assessee and other hoteliers. It was submitted that the respondent-assessee was not liable to pay Service Tax on Management Fee received for the properties being managed by them as complete independent business units. It was pleaded that this would not fall under the category of Management Consultancy Services. In para 4 of the reply, it was stated that the services rendered by the assessee were not covered under the definition of Business Auxiliary Services as evident from the submissions made by them in vari....
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....hotel industry and it was a service sector industry, the primary objective of the hotelier to provide service of hotel stay, letting out halls for a consideration for organizing any official, social or business function for different events etc. Reference was made to 'Operating Service Agreement' between the respondent-assessee and different hotels. After referring to different clauses of Section 65(19), in para 15.4, the Commissioner, has observed as under : "15.4 As rightly submitted by the noticee, in order to attract levy of service tax under the category of 'Business Auxiliary Services' it is essential that the service must satisfy anyone of the conditions provided under, the above definition. On going through the details of the services provided by the noticee and the definition of Business Auxiliary Services as above, I find that the services provided by the noticee to their clients (Hotel owners) are squarely covered under (vi) and (vii) of the above definition of Business Auxiliary Services." In para 15.7, it has been held as under : "15.7 Whereas in the instant case the service provided by the noticee are consumed by the customers of their clients. Whereas th....
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....her reply or wanted further time to explain and put forth their point of view, they could have asked for an adjournment or further time before the Commissioner of Service Tax. 14. The object and purpose of issue of show cause notice is to inform the assessee so that reply or submissions can be made and relevant facts which are in the knowledge of the assessee can be brought on record. After examining and consideration of the show cause notices, we feel that the assessee was informed and made aware of the contention of the revenue and their stand and stance. The specific agreement(s) which were sought to be brought and charged to Service Tax under the head 'Business Auxiliary Services' were stated. No doubt, Tribunal has permitted the appellant-revenue to act in accordance with the law, but, they would not able to proceed in terms of and for the periods specified in the show cause notices, which were the subject matter of the order-in-original dated 29-5-2012. 15. Section 65(19) defines what is meant by the term Business Auxiliary Service for the purpose of Service Tax and has seven different sub-clauses. However, anyone reading the said sub-clauses alongwith the asserti....
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....the Central Excise Act, 1944 had been invoked but in the show cause notice, it was not specified that whether the assessee was guilty of fraud or collusion or wilful misstatement or suppression of facts or contravention with intention to evade the payment of Excise duty. The show cause notice did not set out any such particulars and did not even make a bare allegation. It was observed by the Supreme Court that it was impermissible to assume a ground to be implicit in the show cause notice. In Collector of Central Excise v. H.M.M. Limited, 1995 Supp (3) SCC 322, extended period of 5 years under Section 11A of the Central Excise Act, 1944 was sought to be invoked in the show cause notice, but, without specifying or making an averment that excise duty was intentionally evaded etc. In these circumstances, the show cause notice was quashed. We do not find that the aforesaid decisions can help the respondent-assessee, keeping in view the factual matrix in the present case, which we have been noticed and discussed in detail. 17. When we examine the Show Cause Notice, we have to take into consideration that the object and purpose is to inform the recipient of the allegations against ....