TMI Blog2009 (3) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... e in terms of the Board’s Clarification dated 28-2-2006, the services rendered of outsourcing of spot billing work would come within the ambit of business support service which is liable to service tax only with effect from 2006. - The appellant has made out a very strong case to show that the services rendered by them would not fall within the category of business auxiliary service during the relevant period. – appeal is allowed - ST/332/2008 - 718/2009 - Dated:- 12-3-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Shri P.J. Joseph, Advocate, for the Appellant. Ms. Joy Kumari Chander, JCDR, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. - This appeal has been filed against OIA No. 23/2008 (H-II) ST dated 23-4-2008 passed by the Commissioner of Central Excise Service Tax (Appeals-II)/Hyderabad. The period, involved in the dispute is from July 2003 to March 2005. 2. We heard both sides. 3. The appellant is a partnership firm carrying on profession of chartered accountancy. They had rendered computerized data processing for billing and accounts management service under an agreement with Andhra Pradesh Central Power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The appellants are highly, aggrieved over the impugned order. The learned advocate urged the following points. (1) The show cause notice and the Order-in-Original do not disclose clearly the category under which the appellant is to be roped in under the taxable service relating to business auxiliary services. The order is vague and ambiguous as activities of the appellants are classified under more than one sub-clauses of the taxable category of Business Auxiliary Service. It was also stated that the appellant was rendering information technology service which was outside the purview of Business Auxiliary Service till 1-5-2006. As per the agreement entered into between the appellant and the APCPDCL the appellant is required to provide computerized data processing service which is an information service as defined in Explanation to Section 65(19) of the Finance Act. Our attention was invited to the definition of Business Auxiliary Service wherein it is stated that business auxiliary service means any service incidental or auxiliary to any activity specified in sub clauses (i) to (iii) such as billing, issue or collection or recovery of cheques, payments, maintenance of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses (i) to (iv). The word 'incidental' is generally used as adjective as is the case here and signifies something which happens casually or fortutiously and at all times subordinate to something else. Similarly the word 'auxiliary' when used as an adjective as is the case here means something additional or aiding or supplemental to the noun it qualifies. Taken together the phrase 'incidental or auxiliary support service' means a service that is subordinate or supplementary to some other service. Therefore, it was submitted that the phrase can only refer to service that is subordinate or supplementary to a pre-defined service and not an altogether indifferent and independent service. Therefore, the incidental and auxiliary service as billing, collection or recovery of cheques can only be incidental or auxiliary to three support services in sub-clauses, (i) to (iii) of Section 65(19) as it stood prior to 10-9-2004. This is further clarified by the later amendment to clause on incidental and auxiliary services after insertion of three more support services with effect from 10-9-2004. After substitution of clause (iv) as clause (vii), in 2004 it reads as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause, the service provider should provide service on behalf of the client which implies agency type arrangement where three parties are to be involved i.e. customer, clients and service provided. As on behalf of is employed in both clauses, interpretation of expression should be the same. As there is no agency agreement, between APCPDCL and appellant, said services are not liable to service tax under business auxiliary service. The agreement between the parties are on principal to principal basis and the consumer is not a party to the agreement. It was submitted that with the introduction of sub-clause (vi) in section 65(19), provision of service on behalf of the client is taxable service under any customer care service provided on behalf of the client should be given the same meaning in respect to expression on behalf of the client. The expression 'provision of service' is wider and covers all services provided on behalf of the client. In the early category only customer care service was subject to service tax. This is without prejudice to what is stated earlier that in no case service provided by the appellant can be provision of service on behalf of the client. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the category of business support service. Introduction of new category of service implies coverage under the new category is an area not covered by earlier taxable service. There was also a prayer that the lower officers ought to have allowed reimbursement on the basis of actuals till enactment of service tax determination value rules 2006. They relied on a number of case laws. Further it was submitted that the extended period has been invoked and there is no justification for extended period as there is no suppression of facts with intent to evade payment of tax. Appellants were under the bona fide belief that services rendered by them were not taxable till 1-5-06 and therefore they need not take out registration. They relied on the case of Diebold Systems (P) Ltd., v. CCE - 2008 (9) S.T.R. 546 (Tri. - Chennai) wherein it is held that extended period of limitation is not invocable when there is doubt as to the taxability of service rendered. In circumstances where there are conflicting views and the issue relates to the interpretation of service extended period of limitation cannot be worked out. 12. The learned JCDR reiterated the impugned order-in-appeal. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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