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2015 (6) TMI 786

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..... conclusion whatsoever as to which particular or specific taxable service the appellant had provided. In the absence of an allegation of having provided a specific taxable service in the show cause notice and in view of the failure in the adjudication order as well, neither the show cause notice nor the consequent adjudication order could be sustained. In any event officers are not handicapped and the Act provides ample powers including of search under Section 82 of the Act to obtain information necessary to pass a proper, disciplined and legally sustainable adjudication order. The disinclination to employ the ample investigatorial powers conferred by the Act is illustrative of gross Departmental failure and cannot afford justification for passing an incoherent and vague adjudication order. The failure to gather relevant facts for issuing a proper show cause notice cannot provide justification for a vague and incoherent show cause notice which has resulted in a serious transgression of the due process of law. - Decided in favour of appellant. - Service Tax Stay Application No. 57519 of 2013 in Appeal No. 56958 of 2013 - Final Order No. 51964/2015 - Dated:- 16-6-2015 - Hon bl .....

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..... mons ensued; that from scrutiny of the documents submitted by the appellant and the investigation, the appellant is seen to have filed nil ST-3 returns except for 2007-2008 and to have remitted service tax of a mere ₹ 998/-; and from the award letters submitted, appellant appears to have rendered taxable services but failed to remit the tax due. 4. In para 8 of the show cause notice, which we consider critical to the validity of the show cause notice, it is stated :- 8. Whereas from the documents submitted by the party it appears that they have rendered the taxable services which may either be classified under Management, Maintenance or Repair service or Erection, Installation and Commissioning services and other construction linked services as defined under the Finance Act, 1994 (emphasis added). 5. After extracting the definition of Management, Maintenance and Repair services and setting out contents of the Board Circular dated 27/7/05 and definition of Erection, Commissioning or Installation service in para 9, para 10 observes that the appellant failed to provide detailed contractual documents for ascertaining the exact nature of the works executed and that on th .....

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..... b-clause (b) of explanation (ii) of Section 65 (105) (zzzza), post 01/6/07; that the show cause notice was ambiguous and vague since it failed to specify the exact taxable service under which the activity of the appellant falls to be considered as a taxable service; and that in several contracts, works involved segments which were outside the purview of commercial or industrial construction or even works contract service, vide the exclusionary clauses in the definition of these taxable services. Appellant also pleaded before us that Section 98 of the Act with retrospective effect exempted levy and collection of service tax in relation to Management, Maintenance and Repair services provided for non-commercial Government buildings during the period 16/6/05, till the Negative Tax Regime (whole of the period of the services provided by the appellant). This interim response was followed by another reply to the show cause notice, dated 10th January 2013, reiterating the same claims/defenses. 8. Learned Consultant for the appellant adverts to page 11 of the memorandum of appeal which sets out in a tabular form the total consideration received by the appellant during the relevant period .....

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..... xable services provided by the appellant, that service tax of ₹ 1,53,14,782/- is recoverable under the proviso to Section 73 (1) of the Act alongwith interest, excluding penalty under Section 76. Para 32 records the operative portion of the order declaring the specified liability to service tax, interest and penalties. 10. It is a axiomatic that a best judgment assessment under Section 72 could only be for ascertaining the quantum of the tax liability, in a context where the actual extent of liability cannot be determined with methematical precision on account of non-availability of relevant documents or financial records. There cannot be a best judgment assessment regarding the specific taxable service provided. There can be no best judgment, for instance as to whether the tax liability is for income tax, sales tax, excise duty, customs duty, service tax or professional tax. A conclusion as to the taxable event and the liability to tax under the appropriate fiscal legislation authorizing the levy and collection of such tax is a matter for determination with precision and clarity and not by a process of guess-work or speculation. 11. Neither the show cause notice dated .....

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