TMI Blog2010 (12) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 28-12-2010 - Shri M.V. Ravindran, J. REPRESENTED BY : Shri N. Anand, Advocate, for the Appellant. Shri M.M. Ravi Rajendran, JDR, for the Respondent. [Order (Oral)]. This appeal is directed against Order-in-Revision No. 31/2008 dated 21-7-2008. 2. The relevant fact that arise for consideration are the appellants were providing services to M/s. ALCOA Fastening System, Huck S.A., France and M/s. Titeflex Europe, France. They provided the services during the period January 2002 to December, 2004. During April 2005, the appellant raised invoices on both the service recipient. Appellant paid Service Tax amount of Rs. 2,99,561/- in May 2005 under the impression that they are liable to discharge the Service Tax. On the appraised of the legal position, the appellant filed a refund claim on 12-7-2005 claiming that they are not required to discharge Service Tax, since this was an export of services and they got the refund of the amount. On 12-9-2005, department issued show cause notice directing the appellant to show cause as to why the said refund claim filed by them be not rejected. The appellant resisted the show cause notice and filed a detailed reply. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Rule 3(3) of Export of Services Rules, 2005. He would submit that this point was not put to the assessee when the first show cause notice was issued and it has been taken as a first allegation in the review show cause notice. He would submit that on reading of Provision of Section 84(1), it is very clear that the order which has to be passed by the learned Commissioner as a reviewing authority has to be within the parameters of the proceedings which were initiated by the Adjudicating Authority. For this proposition, he would rely upon the decision of the coordinate bench of the Tribunal in the case of Sands Hotel Pvt. Ltd. v. CST, Mumbai - 2009 TIOL-441-CESTAT-AHM = 2009 (16) S.T.R. 329 (Tribunal). He would rely upon the decision of the Hon ble Supreme Court in the case of Hindustan Polymers Co. Ltd. v. CCE - 1999 (106) E.L.T. 12 (S.C.) and Reckitt Colman of India Ltd. v. CCE - 1996 (88) E.L.T. 641 (S.C.) for the proposition that a new case cannot be made out by the lower authorities which is not there in the demand notice served on the assessee. 4. Learned departmental representative on the other hand would submit that the provisions of Section 84(1) very clearly indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority] and the Board. (4) No order under this section shall be passed by the [Commissioner] of Central Excise in respect of any issue if an appeal against such issue is pending before the [Commissioner] of Central Excise (Appeals). (5) No order under this section shall be passed after the expiry of two years from the date on which the order sought to be revised has been passed. It can be seen from the above Section that the Commissioner of Central Excise has powers to call for the proceedings which were before an Adjudicating Authority who is subordinate and make such inquiry and cause inquiry to be made and pass an order subject to issuance of show cause notice. The provisions of Section 84(1) read with Section 84(2) for issuance of show cause notice would clearly indicate that the learned Commissioner s powers as a reviewing authority cannot definitely go beyond the show cause notice, which was adjudicated by the first authority who was subordinate to him in the current proceedings. I find that the Adjudicating Authority i.e., Assistant Commissioner in the first place had issued a show cause notice to the appellants directing to show cause as to why the refund should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engineer service. As per the provisions of Export of Services Rules, 2005, sub-rule 3 was applicable in respect of export of consulting engineer s service. Since, the conditions prescribed thereunder do not appear to have been complied with, it cannot be considered that the assessee exported any services Accordingly, the grant of refund is contrary to the provisions of law. 4. In view of the above, the decision of the Assistant Commissioner to grant the refund appears to be erroneous and legally not correct and the O-I-O, in as far as it relates to the above proposals in the SCN, is liable to be revised under Section 84 of the Act. It can be seen from the above reproduced portion of the show cause notice issued by the learned Commissioner as reviewing authority, he has alleged that the appellants have not complied with the conditions prescribed in respect of Export of Services Rules, 2005. It can be seen from the records that this allegation was not put forth by the Adjudicating Authority to the assessee. In my considered view, a new case cannot be made out against the assessee in revisionary proceedings as these revisionary proceedings were in place of an appellate proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether they were providing any convention services or not and it is only after the appellants contention that no such services are provided that search was undertaken. If it is general search conducted in all hotels, bona fide belief on the part of the appellants cannot be out rightly rejected unless some circumstance is shown to establish that the appellant was in the knowledge that service tax is payable on such activity. When no separate charges for banquet halls are recovered there can be bona fide doubt whether service tax is payable in such situation. I further notice that Commissioner has acted as adjudicating authority and not as a revision authority as he has issued an order-in-original and not order-in-revision and the whole tenor of the order is determining of the issue afresh rather than revising the order. In view of the foregoing reasons, I am of tine considered view that the impugned order in review passed by the learned Commissioner is incorrect and travels beyond the show cause notice initially issued to the assessee. The impugned order is liable to be set aside and I do so. Since I have set aside the impugned order on the question of law, I am not recording an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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