TMI Blog2018 (8) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... at these appeals need to be decided in favour of the assessee. Before issuance of show cause notice, the Department could have collected necessary information and come to a conclusion, as to the classification of services rendered and issued a more specific show cause notice which would have been sustainable. Appeal dismissed - decided against Revenue. - ST/384/2008, ST/89/2009, ST/497/2009, ST/943/2010, ST/1157/2010 - Final Order No. A/30838-30842/2018 - Dated:- 7-8-2018 - HON BLE MR. M.V. RAVINDRAN, MEMBER ( JUDICIAL ) And HON BLE Mr. P. VENKATA SUBBA RAO, MEMBER ( TECHNICAL ) Shri Parthasarthy K.A, Shri Rubain Jairam, Advocates for the Assessee Shri Arun Kumar, Deputy Commissioner (AR) for the Revenue ORDER [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them to the place of business agents which is not a taxable service. It is an admitted fact that they had not discharged any tax on this service rendered by them. It is also undisputed that they are collecting service charges for this service. The show cause notices were issued which proposed classification of these services under three categories namely, Business Auxiliary Services, Clearing and Forwarding services, Cargo Handling service. The assessee was required to show cause as to why the goods cannot be classified under Section 65 (19) and service tax charged accordingly. The assessee defended themselves against the classification under each of this. After following due process of law, the Learned Lower Authority vide Order-in-Origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered by them under any heading. Unless a specific classification of services under no liability can be imposed. It is impossible for the assessee to defend themselves when the show cause notice itself proposes to classify the same service under 3 different headings. ii) the Department has also classified the same services in their Order-in-Original and Order-in-Appeal under two headings for different periods namely, Clearing and Forwarding services and Business Auxiliary services. It shows that the Department themselves are not clear as to what taxable services are rendered by them. iii) the services provided by them are only tying of newspaper bundles and transport them to the place of business of the agents to this services cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortation of newspaper bundles from all the publishing centers of the first party to the various destinations. 10. The first part agrees to pay service charges to the second party based on the bills raised every month towards packing, transportation and forwarding of newspaper bundles from all the publishing centers of the first party. He, therefore, submits that the Learned Counsel for the appellant assessee is wrong in saying that they are tying of newspaper bundles and transporting because, the scope of the agreement includes packing, transportation and forwarding newspaper bundles from all the publishing centers and includes collecting deposits used and remitting the same to M/s Ushodaya Enterprises Ltd. Thus, the responsibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative that this amounts to Business Auxiliary service. However, as observed by the First Appellate Authority in his Order No. 10/2009 dated 26.02.2009 at the time show cause notice was issued, the Department itself is not sure under which head the appellant is liable for service tax. For this reason, we find that these appeals need to be decided in favour of the assessee. Before issuance of show cause notice, the Department could have collected necessary information and come to a conclusion, as to the classification of services rendered and issued a more specific show cause notice which would have been sustainable. In view of the above, the appeals No. ST/497/2009 and ST/1157/2010 filed by the Revenue are dismissed and the appeals No. ST ..... X X X X Extracts X X X X X X X X Extracts X X X X
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