TMI Blog2019 (2) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... - 17-1-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Manish Gaur, Shri B.L. Narsimhan and Shri Rachit Jain, Advocates for the appellant Shri Amresh Jain, DR for the respondent ORDER PER BIJAY KUMAR : These two appeals have been filed by the two appellants as under:- S. No. Appellant Appeal No. OIO No. SCN dated Relevant period Service Tax 1 Chawanda Associates ST/54139/2014 JAI-EXCUS-002-COM-04-05-14-15 dated 12.05.2014 11.04.2013 October, 2007 to March, 2010 3,04,78,672/- 2 ST/54140/2014 04.09.2013 April, 2012 to March, 2013 36,583/- 3 Riddhi Siddhi Associates ST/54141/2014 JAI-EXCUS-002-COM-06-07-14-15 dated 13.05.2014 30.07.2013 April, 2008 to March, 2012 3,38,30,532/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: Provided that the provisions of this section shall not apply with effect from such date as the Central Government may, by notification, appoint. [Emphasis supplied] 5. That Section 66, which provides for the levy of Service Tax on various categories of taxable services, has also been made ineffective w.e.f. 1st July, 2012. The Finance Act, 2012 added a Proviso to Section 66 which reads as under: Provided that the provisions of this section shall not apply with effect from such date as the Central Government may, by notification, appoint. [Emphasis supplied] 6. That Notification No. 20/2012-ST, dated 05.06.2012 and Notification No. 22/2012-ST, dated 05.06.2012 have been issued by the Central Government so as to provide that the provisions of Section 65 and Section 66 respectively shall not apply with effect from 1st July, 2012. 7. That the purpose of a Show Cause Notice is to grant an opportunity to the Noticee to deal with the allegations made therein. Unless the allegations are specific and in conformity with the applicable law, the Noticee cannot be said to have been afforded a sufficient opportunity of hearing. 8. That the demands were pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hyper-technically, the notice must clearly indicate and provide an impression to the noticee of the basis on which liability is alleged, so as to provide him an opportunity of contesting the assertion and submitting his defence, if any. A show cause notice is not an empty formality or a ritual without a purpose. In the present case the infirmity is not on account of mere mention of a wrong provision of the Act. The 2011 amendments expanded the scope of taxable service to cover services provided to non members of a club or association , as well. The expanded scope of the taxable service is thus clearly prospective. It is therefore incumbent that the show cause notice should assert that FICCI's liability to tax (after 01.05.2011) arises under and in the context of the amended provisions. This is so since FICCI should be provided the opportunity to offer several available defences to such allegation, including that rendition of services to non members (which is allegedly taxable after the amendments), had in fact occurred prior to 01.05.2011; or that services provided to non members fall outside the ambit of the taxable service as defined, for other reasons. This is not a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant would have been given a fixed amount for its activity of collecting royalty/toll on behalf of DMG/ RIDCOR. 17. That it is not the case and the Appellant has actually acquired the right from DMG/ RIDCOR for collection of royalty/toll against payment of the amount specified in the agreement. The Appellant has collected royalty/toll in exercise of its own right and not on behalf of DMG/ RIDCOR. In such a case, the Appellant cannot be said to have rendered any service to DMG/ RIDCOR. Thus, the very basis of the Impugned Order, as regards agreements with DMG/ RIDCOR, is factually incorrect and confirmation of demand therein is not sustainable. In any case, the activities of the Appellant are not in nature of those performed by a commission agent. 18. That the Appellant does not act as a commission agent, as defined in Section 65(19) of the Act, in respect of its agreements with DMG/ RIDCOR, and thus, confirmation of demand under the category of BAS is not sustainable. 19. That the definition of commission agent under Explanation-(a) to Section 65(19) refers to various activities undertaken by a person on behalf of another while dealing with goods and services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y (P) Limited, 2013 (31) STR 419 (AP) Shri Jivanlal Joitaram Patel v. Commissioner, 2016-TIOL-672-CESTAT-AHM Prakash Asphalting Toll Highways India Limited v. Commissioner, 2017-TIOL-677-CESTAT-DEL Commissioner v. Ideal Road Builders Private Limited, 2017-TIOL-3923-CESTAT-MUM Intertoll ICS Toll Management Company P. Ltd. v. Commissioner of Service Tax, Ahmedabad, 2018 (8) TMI 31 - CESTAT AHMEDABAD Interocean Shipping Co. v. Comm. of S.T., New Delhi, 2013 (30) S.T.R. 244 (Tri. Del.) as upheld in Comm. of S.T., New Delhi v. Interocean Shipping Co., 2015 (40) S.T.R. 210 (S.C.) Banas Sands TTC v. CCE, New Delhi - Final Order No. 53603/2016 dated 11.08.2016 Mateshwari Indrani Contractors Pvt. Ltd. v. CCE ST, Jaipur-II, Final Order No. 52187/2018 dated 06.06.2018 M/s Selection Synthetics Ltd. v. CCE ST Bhavnagar, 2018 (4) TMI 1186 - CESTAT AHMEDABAD M/s Zonac Kniting Machines P. Ltd. v. CCE ST, Noida, 2018 (7) TMI 1788 - CESTAT ALLAHABAD 23. That in view of the above, confirmation of demand against the Appellant under the category of BAS is not sustainable and deserves to be set aside. In any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the extended period of limitation cannot be invoked in the present case. Accordingly, the entire demand in respect of appeal at S. No. 1 (ST/54139/2014) is time-barred. Moreover, the entire demand in respect of appeal at S. No. 3 (ST/54141/2014) is also time-barred. 31. Hence, as there was a reasonable cause for failure to pay tax, it is submitted that no penalties can be imposed on the Appellant. 4. Ld. AR appearing on behalf of the Revenue states that the Government Department is collecting these taxes as a commercial entities and these services are not in the nature of statutory duties. He, accordingly, supports the order passed by the ld. Adjudicating Authority. 5. We have considered the rival contentions and perused the case records. 6. We find that the similar issue is already decided in case of Mateshwari Indrani Contractors Pvt. Ltd. Final Order No.52187/2018 dated 6.6.2018. All the issues, which are being contested in these appeals have been decided in favour of the appellants by this Tribunal. However, we find in these cases the period involved is also post 1.6.2012. We are in agreement with the contentions made by the ld. Advocate i.e. s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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