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2013 (10) TMI 958 - CESTAT AHMEDABADDefect in issuance of Show Cause Notice - Business Auxiliary Services - appellant being person is running Company-owned Company-operated petrol pump of BPCL. - Held that:- show cause notice has been issued to the appellant herein as a Proprietor of M/s. Bombay Garrage (Rajkot) Pvt. Limited. In our view, Private Limited Company can never have a proprietor. To ensure that appellant herein is not a proprietor, we perused the agreement enclosed with the appeal memoranda, entered by M/s. BPCL with M/s. Bombay Garage (Rajkot) Pvt. Limited, in the entire agreement the appellant is shown as Director of M/s. Bombay Garage (Rajkot) Pvt. Limited. Reading of the said agreement indicates that a Private Limited Company entered into contract with BPCL for running a Company-owned Company-operated petrol pump. If that be the fact, in our view, the show cause notice issued to the appellant herein as a proprietor or as an individual for the recovery of service tax, is mis-joinder and is unsustainable in the eye of law, as the show cause notice needs to be issued to the service provider in order to initiate proceedings for recovery of service tax, if any - there being mis-joinder for demanding service tax liability, the impugned order against the current appellant is unsustainable by any stretch of imagination - Decided in favour of assessee.
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