TaxTMI 
TaxTMI 
2017 (6) TMI 57
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....ctions, Vivek Engineering Co., A Rajendran & Co., N. Krishnamurthy, D. Sekar, G.Kalyanasundaram, S. Sundaram & Sons, K. Venkatesan, M. Suriyakumar, M. Siva Subramaniam, MRM Constructions, N. Rathinavel & Sons, N. Arunachalam, C. Arokiasamy, S. Ayyakannu & Co. ORDER Per Bench The issue involved in all these appeals being common, they are taken up together and are disposed of this common order. The appeals were earlier disposed by the Tribunal vide Final Order dated 25.8.2014 by which the Tribunal remanded the matters to the adjudicating authority. Being aggrieved, the respondents/assessees filed appeals before the Hon'ble High Court of Madras and vide judgment dated 30.4.2015 and other dates, the Hon'ble High Court has remanded the matter to the Tribunal for consideration. 2. Brief facts of the case are that the land belonging to large number of people was acquired for Neyveli Lignite Corporation Ltd. (NLC) a mining project. As a compensation package to those persons whose lands were acquired prior to 2004, the NLC initially gave employment to one of the family members whose lands were thus acquired. When there was no further scope to give employment, NLC decided to award minor ....
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....ent or Supply Agency Service. The assessees had obtained registration in the year 2006 and they were executing the works as per the contracts even prior to taking registration. The period involved is from 2003 04 to 2007 -08 and since the assessees have been rendering the same services for which they have obtained registration, the contention raised by them that the category of the services has not been mentioned in the show cause notice is without basis. Further, they have paid service tax in some of the matters and the demand is raised only for the short-demand. The demand has been arrived at basing on the details furnished by NLC who has awarded the contracts to the assessees. Pursuant to the interim order of the Tribunal, the Department had produced the letter issued by NLC showing the details of the category of services as well as the details of demand on various categories of services. Only after the department commenced enquiries with NLC and only after being advised by the departmental officers to do so, the assessees obtained registration for various clauses of services. 3.2 It is also submitted by Revenue that copies of statement showing the payment details by various un....
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....l building and painting of Government hospital, irrigation system etc. The assessees were providing both taxable as well as non-taxable service. The show cause notice did not mention either the classification or the break-up of the demand. 4.2 Though the show cause notices have demanded quantum of service tax on taxable value adopted for the purpose by the department, no justification or reasoning is available in the show cause notice for arriving at such taxable value. Further, service tax has merely been demanded on taxable value without clarifying as to what are the services which are being taxed. 4.3 In the show cause notice, it is stated that the statement of NLC is annexed. In the Final Order dated 25.8.2014, passed by the Tribunal, the Tribunal had directed the department to furnish this very statement to the assessees which is evidence that the said statement was not earlier furnished to the assessee. The fact is that no such statement had been provided to them along with the show cause notice. If proper classification was proposed and the amount paid by NLC was amortized against the services mentioned in para 1 of the show cause notice, then the assessee would be eligibl....
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....lection of payment details from NLC, and based on those details, appellants had been visited with letters from the jurisdictional Superintendent of Central excise asking them to pay service tax on the amounts received for the taxable services rendered by the asessees to NLC. It is interesting to note that there is no indication of whether the said letters from the Range Superintendent had given the nature of services on which service tax was being demanded and the calculation for arriving at the tax liability. It is further pertinent to note that as per the SCNs themselves these letters had not been provided to the assessees along with notices. 5.5 Presumably, the same statement of NLC is the one with regard to para-3 of the SCNs where it is mentioned that "M/s.NLC Ltd. have furnished details of amounts paid by them to M/s...... (assessee) for the services rendered by them during the period [.....] (copies of the statement showing payment details by various units of NLC are annexed). It is the grievance of the assessees that this statement was never provided or annexed at the time of issue of the SCNs. We find that this contention indeed has some merit. This very Tribunal in its e....
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...., some of them sent by NLC and some by departmental officers and some without signature, however, it is now clear that break up as per the classification of activities was not given in any of the said statements. 5.9 It also emerges that the said statement had not been given at the time of issue of the SCNs on 21.10.2008 but were given only in January-March 2015 pursuant to CESTAT direction of 30.10.2015. However, at least in respect of three appellants, the said statement has not been given to them in spite of such directions. 5.10 The Commissioner (Appeals) in the impugned orders has decided in favour of the assessees mainly on the following grounds : (i) the SCN is not maintainable for the reason that the SCN has failed in giving specific services under which they should have discharged the tax as against the classification done them; (ii) the impugned order is not sustainable inasmuch as the order does not speak individual services and amount received under each service; (iii) the department was aware of all the facts for quite long time as early as 2006 and hence, there is no suppression of facts; hence, extended period cannot be invoked in the present case. 5.11 In r....
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.... convey the exact nature of the alleged act or omission or any other infraction that has resulted in differential tax liability, the assessees will then find themselves helpless and unable to see any light of the end of the dispute tunnel. 5.15 Such short comings and deficiencies in the show cause notices are uncurable defects which will inevitably cast a shadow on the proceedings that have emanated from it. 5.16 In the result, the demands of tax that may have been resultant of these proceedings will fail, ab initio. 6.1 In these circumstances, we are unable to find any infirmity in the impugned orders in these cases, of Commissioner (Appeals) setting aside the demands against the assessees confirmed by authority, for example:- (a) In Order-in-Appeal No. 32/2012 dated 1.5.2012 passed in the case of M/s. MCV & Co. The relevant portion of the order is reproduced below-:- "5.5 I find that instant case the impugned Order-in-Original does not contain the details like the category of services under which the service tax liability falls under activities carried out by the appellant and whether such activities could be classified under specific categories of services and applicabilit....
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.... to 2007-08 under the proviso to Sec.73 (1) of Finance Act, 1994. I find from the impugned order the department had been aware that the appellant had been rendering services to M/s. NLC and enough time had been given to the appellant to pay service tax alleged to have been received by the appellant from M/s. NLC for the services rendered by them during the period 2003-04 to 2007-08. This being so the appellant cannot be fastened with duly liability invoking proviso of Sec.73 as there was no intention on the part of the appellant to evade payment of Service Tax as further evidenced by the correspondences the department had with M/s. NLC and the Contractor Association of NLC had with NLC as well department on various occasions. 6.4 In this connection it is pertinent to point out that the Apex Court in the case of Pushpam Pharmaceuticals Company Vs. CCE, Bombay reported in 1995 (78) E.L.T. 401 (S.C.) has held that Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done does not render it suppression of fact. In view of the Apex Courts decision, since the facts was known to the department, the extended time limit is n....
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....ount has been collected but paid less tax by leaving out the alleged suppressed value. Thus vague allegations have been made in the notice. 5.2) As brought up in their reply and submissions during hearing on 16.12.09 by the noticee the notice is not maintainable as a sufficient notice to make a demand under the provisions of Central Excise Act, 1944 namely Sec 11A ibid. The noticee have referred to several judgments of the Hon'ble SC and Tribunals, totally numbering 14 on the maintainability of the impugned notice, of which I find, one is more eloquent to decide on the present case namely CCE Vs Brindavari Beverages 2007 (213) ELT 487 decided by the Hon'ble Supreme court: The Show cause Notice is the foundation on which the department has to build up its case. If the allegations in the Show Cause Notice are not specific or on the contrary vague, lack details and or unintelligible that is sufficient to hold that the notice was not given proper opportunity to meet the allegations indicated in the show cause notice in this case what the appellant has tried to highlight is the alleged connections between the various concerns. Therefore the Apex court has held As no sufficient materi....
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....ns of the Commissioner as affirmed by the CEGAT cannot be faulted." 7.3 In the case of Delta International Limited Vs. CC - 2012 (281) ELT 400 (Cal.) that a SCN will fall through when it is devoid of any grounds or reasons or particularly in support of its claim for short payment. The relevant portion of the judgment is reproduced below:- "15. In our opinion, the flaw in the show cause notice is fundamental. The subject says non-realization of customs duty". The body of the show cause notice does not disclose how there is non-realization of customs duty or short payment of it. However, documents have been brought on record including an affidavit-in-opposition and notes of submission purporting to establish what was to be collected was central excise duty and that such duty is computed as customs duty, but nevertheless, collected as central excise duty. The customs authorities by virtue of the above notifications had power to issue the show cause, it was submitted. 16. In our opinion, whether they have the power to do so or not is very secondary. No case has prima facie been made out against the appellant/writ petitioner which he can be required to answer. Under well settled ....
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....ng of the entry 268 would show that whatever be the classification of the goods, if they are used in the factory for fabrication of a structure to be mounted on a chassis, they are entitled for the benefit of the exemption. These conditions have been fulfilled, as the original authority has given a finding after visiting the factory. The Commissioner (A) has not properly discussed as to why the benefit of the exemption Notification cannot be given to the impugned goods. The fact that the structure manufactured is mounted on the chassis of a vehicle is not in dispute. Hence, the original authority is right in extending the benefit of the exemption Notification." 7.6 The Tribunal in Shubham Electricals Vs. Commissioner of Central Excise, Rohtak - 2015 (34) STR held that failure to gather relevant facts for issuing proper show cause notice cannot provide justification for vague and incoherent show cause notice resulting in seriuos transgression of due process of law. The relevant portion of the order is reproduced below:- "13. We have noticed earlier that the show cause notice itself adverts to the fact that the appellant had provided copies of 20 work orders executed in relation t....