TMI Blog2017 (2) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... services. Such an exercise was not carried out by the adjudicating authority and also there is no whisper in the show cause notice in this regard. Such legal infirmity in the show cause notice is incurable at the appellate stage. Unless the show cause notice exhibits the activity carried out, and the service which has essential character to embrace the cluster of service to its fold, it is difficult to comprehend to classify such services under an appropriate taxing entry. Reliance was placed in the appellant's own case CMS (I) OPERATIONS & MAINTENANCE CO. P. LTD. Versus C. CE, PONDICHERRY [2007 (5) TMI 74 - CESTAT, CHENNAI] - to bring a bundle of services under a service having essential character thereof, such essentiality requires cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of law without any examination of the material facts borne by any of the agreements. Therefore, the show cause notice without having any foundation should not bring the appellant into the fold of law under the garb of management consultancy service provider under section 65A(2)(b) of the Finance Act, 1994. 3. Appellant categorically says that it was engaged in operation and maintenance of the power plant which was not declared to be taxable service at the relevant point of time. 4. On the other hand, learned AR for Revenue says that there was cluster of service provided by the appellant which was rightly brought under the predominant character of Management Consultancy Service under section 65A(2)(b) of the Finance Act, 1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) When a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under the sub-clause which occurs first among the sub-clauses which equally merit consideration. [Emphasis supplied]. 8. Sub-clause (b) under sub-section (1) of section 65A provides classification of cluster of services under a specific taxing entry which gives the essential character of the services. Such an exercise was not carried out by the adjudicating authority and also there is no whisper in the show cause notice in this regard. Such legal infirmity in the show cause notice is incurable at the appellate stage. Unless the show cause notice exhibits the activity carried out, and the service which has essential ..... X X X X Extracts X X X X X X X X Extracts X X X X
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