TMI Blog2024 (3) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the SCN dated 14.10.2011 nor the Order-in-Original dated 29.06.2012 has mentioned the specified category service under which the service tax has been demanded. In the absence of specific demand of service tax under a particular category of service, that the demand of service tax is not sustainable. This view has been held by Tribunal Hyderabad in the case of SYNIVERSE MOBILE SOLUTIONS PVT LTD., (EARLIER TRANSCIBERNET INDIA PVT LTD.) VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE SERVICE TAX, HYDERABAD IV [ 2023 (6) TMI 463 - CESTAT HYDERABAD] , wherein it has been held Tribunals have been consistently holding that it is essential for the Show Cause Notice issuing authority to clearly indicate the sub-clause under which the service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no provision under the service tax act to demand service tax on TDS refund. Accordingly, it is held that the demand confirmed in the impugned order on this count is not sustainable. Interest and penalty - HELD THAT:- Since the demand itself is not sustainable, the question of demanding interest and imposing penalty does not arise. Accordingly, it is held that the demand of service tax along with interest and penalty confirmed in the impugned order is not sustainable. The impugned order set aside - appeal allowed. - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. K. ANPAZHAKAN MEMBER (TECHNICAL) Shri Manish Rastogi, Advocate for the Appellant Shri S. Mukhopadhyay, Authorized Representative for the Respondent ORDER The present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of specific demand of service tax under a particular service, the demand of service tax is not sustainable. They have been registered under the category of 'Manpower Recruitment or Supply Agency Service'. Service tax has not been demanded under this category also. In the Order in Appeal, the Commissioner (Appeals) categorized the demand of Service Tax on the basis of the different heads mentioned in the Profit and Loss account. The breakup of which is furnished below: (i) Insurance commission received from Bajaj Alliance; (ii) Consumable items supplied and (iii) TDS refund 3.1. Insurance commission received from Bajaj Alliance Rs 1,67,296/- -The Service Tax demand has been confirmed by the Commissioner (Appeals) on the ground that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Service Tax demanded on Insurance Commission from the appellant is not sustainable. 3.2. Regarding demand of service tax on the Reimbursement of expenses of Rs 2,62,773/- , the Appellant submits that they have acted as pure agent, as such, the invoices has been raised in the name of the principal and the exact amount has been reimbursed. The Commissioner (Appeals) has confirmed the demand on the ground that the invoice has been raised on the name of the principal. As per Rule 5(1)(2) of the Service Tax (Determination of Value) Rules, the expenses incurred by a Service Provider as pure agent would not be included in the taxable value. They have made payment of the goods to the supplier on behalf of the principals which has been reimb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cify the clause under which the Appellant services will fall, on perusal of the Show Cause Notice it is seen that the entire portion of Section 65(19) pertaining to Business Auxiliary Services has been extracted at Para 2 of the Show Cause Notice without any reference whatsoever as to under which clause of the Section 65(19) the services referred by the Appellant would fall. On this issue it is seen that Tribunals have been consistently holding tha t it is essential for the Show Cause Notice issuing authority to clearly indicate the sub-clause under which the service tax in question would fall. 6.1. It is a settled law that the defect in the notice cannot be cured by the observations of the adjudicating authority or appellate authority. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on behalf of the principal has been reimbursed. Accordingly, we hold that the demand of service tax confirmed on the reimbursed expenses, where the Appellant acted as a pure agent is not sustainable. 6.5. We find that Service tax has been demanded on the TDS refund of Rs. 2,17,292/- We observe that there is no provision under the service tax act to demand service tax on TDS refund. Accordingly, we hold that the demand confirmed in the impugned order on this count is not sustainable. 6.6. Since the demand itself is not sustainable, the question of demanding interest and imposing penalty does not arise. Accordingly, we hold that the demand of service tax along with interest and penalty confirmed in the impugned order is not sustainable. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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