2016 (12) TMI 596

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.... service tax of Rs. 55,28,832/- along with interest and also imposed penalty under Section 75 A, 76, 77 & 78 of the Finance Act. For alleged short payment of service tax, under the classification of C & F Services. 2.   The brief facts are that the appellant was a registered assessee with the service tax department, paying service tax under the classification business auxiliary services after getting registered in March, 2005 and paying tax with effect from 10 September, 2004. Show cause notice dated 18th April, 2007 was issued alleging that the appellant are engaged in providing C & F Services to various Distilleries and accordingly misclassified the taxable services and failed to get themselves registered under the classifica....

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....on of minimum sales price by the manufactures. It is also pointed out that there is element of trade also involved as in the case, the appellant sales below the MRP or the minimum price fixed by the Principal/manufacturer the loss so incurred has to be borne by the appellant. It is further urged that as the appellant were already registered dealers with the Revenue under the provisions of service tax, the show cause notice is defective as no opportunity have been given and or issue is raised by Revenue as to classification of the alleged services under 'clearing and forwarding agent service'. It is further urged that the issue is no longer res-Integra and the Larger Bench of this Tribunal in the case of Larsen & Toubro Ltd., 2006(3) STR 321....

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.... in Clause (j) of Section 65(105) of Finance Act, 1994 whether used in conjunctive or dis-injunctive sense. The Hon'ble High Court have ruled that legislative intention to cover a person rendering, clearing ad forwarding service, word 'and' to be used in conjunctive sense. As if the word 'and' is read as 'or' then it would amount to doing violence to the simple language used by legislature which cannot be imputed ignorance of English language. Accordingly, prays for allowing the appeal of the assessee with consequential benefits and dismissal of the appeal of the Revenue. 6.   The learned A.R. for Revenue relies on the impugned order. 7.   Having considered the rival contentions, we find that the show-cause-notice ....