TaxTMI 
TaxTMI 
2019 (8) TMI 320
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....vice" (hereinafter referred to as BAS) as provided for under section 65(19) of the Finance Act 1994 (hereinafter referred to as the Act). It is on the basis of the records, including the ledger maintained and provided by the appellant to the officers of the audit, that the Show Cause Notice further mentions - "(i) That the noticee showed "Misc. income on Technical Fee" which is under the category of Business Auxiliary Service and received Service charges from service recipients for the years 2004-05,2005-06, and 2006-07 on this count. The details of receipts made by the notice are as below:- Financial Year Amount Received Rate Service Tax Ed. Cess @ 2% 2004-05 Rs. 671279 10% Rs. 67128 Rs. 1343 2005-06 Rs. 1497123 10% Rs. 149712 Rs. 2994 2006-07 Rs. 1777930 12% Rs. 213352 Rs. 4267 Rs. 3946332 Rs. 430192 Rs. 8604 Whereas it appears that the amount of service charges as indicated in the table above received on account of Technical Fees attracted Service Tax on such services w.e.f. 01.07.2003. Therefore, the noticee is liable to pay the Service Tax amounting to Rs. 4,30,192/- (S. ....
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....Year Amount Received Rate Service Tax Ed. Cess @ 2% SH.Ed. Cess @ 1% 2004-05 Rs. 1238894 10% Rs. 123889 Rs. 2478 - 2005-06 Rs. 4084525 10% Rs. 408453 Rs. 8169 - 2006-07 Rs. 8421574 12% Rs. 1010589 Rs. 20212 - 2007-08 Rs. 14192211 12% Rs. 1703065 Rs. 34061 17031 Rs. 27937204 Rs. 3245996 Rs. 64920 17031 From the table above, it transpires that the noticee are liable to pay service tax of Rs. 33,27,947/- on the value of commission charged by them. (v) Whereas it was further revealed that the noticee has received Rs. 1,61,400/- Rs. 5,500/- and Rs, 97,600/- for the periods 2004-05, 2005-06 and 2006-07 respectively against 'Income from Seminar'. The said income from Seminar was earned by the service recipient on account of "Training provided to them". Such, Training/seminar falls under the category of "Business Auxiliary Service" and attract service tax w.e.f. 01.07.2003, as detailed below:- Financial Year Amount Received Rate Service Tax Ed. Cess @ 2% 2004-05 Rs. 161400 10% Rs. 16140 Rs. 323 2005-06 Rs. 5500 10....
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....otice, are reproduced below:- "B. The SCN does not specify the sub-clause of Section 65(19) (Business Auxiliary service) under which the services provided by the Noticee are liable to service tax. B.1 Without prejudice to the other grounds, it is submitted that the SCN proposing to levy service tax under the category of 'business auxiliary service' is vague as it has failed to disclose the clause in the definition of 'business auxiliary service' under which the activities undertaken by us are covered. B.2 The Notice further submits that the burden of proof to establish that the activities undertaken by the Noticee are covered under 'business auxiliary service' lies on the Revenue. A perusal of the SCN clearly shows that the Revenue Department has not assigned any reason as to why the amounts paid and received by the Noticee are covered by 'business auxiliary service'. B.3 In this regard the Noticee places reliance on the following case laws: (1) Heveacrumb Rubber (P) Ltd. v. Supdt. Of Central Excise [1983 (14) ELT 1685 (Kar.)] (2) Vairavan Thandal v. Appellate Collector of Cus., Madras. [2000 (125) ELT 94 (Mad.)] (3) Au....
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....ant also received an amount of Rs. 40,66,456/- from the recipient of "technical knowhow", which service fall under BAS, but Service Tax was not paid. (iv) The appellant received an amount of Rs. 2,79,37,204/- as commission from M/s.Toyota Tsusho Corporation, Japan for marketing their goods in India, which commission would fall under the category of BAS and attract Service Tax w.e.f. 1 July 2003, but the appellant did not pay the Service Tax. (v) The appellant received an amount of Rs. 2,64,500/- against, income from seminar earned by the appellant on account of "training provided" which would fall under the category of BAS and attract Service Tax, but it was not paid. 10. BAS has been defined in section 65(19) of the Act as follows:- "65 (19) "business auxiliary service" means any service in relation to - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or ....
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....et aside for this reason. 13. In the appeal filed before the Commissioner(Appeals), the appellant again specifically stated that the burden to establish that the activities undertaken by the appellant were covered under BAS lay on the Revenue, but the Show Cause Notice did not give any reason as to why the amount paid and received by the appellant were covered under BAS. The Order-in-Original does not deal with this issue and only in a cryptic manner examined the amount received under various heads without recording any finding as to why the demand of Service Tax was justified. The appellate order does not deal with this objection of the appellant. 14. In Commissioner of C.Ex., Bangalore, the Supreme Court observed that the Show Cause Notice is the foundation on which the department has to build up its case and if the allegations in the Show Cause Notice are not specific and on the contrary are vague and lack details, it would be sufficient to hold that the noticee was not given proper opportunity to meet the allegations. The relevant paragraphs are quoted below:- "9. We find that in the show cause notice there was nothing specific as to the role of the respondents, ....