TMI Blog2023 (5) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... visions, allegations in the notice become futile. Mere bald allegations in a notice are not enough to sustain the demand against the appellant. The impugned order has confirmed the demand of service tax on the income of Rs.64,21,843/- by observing that the contention of the appellant that it is covered under other litigation is factually incorrect. However, the impugned order has no finding as to how these charges are actually covered under the scope of BAS. A perusal of the nature of activities to which the said income pertains shows that they are service charges for the year 2004-05, received on account of Head Office, Bhopal; Emporium, Bhopal; Emporium, Jabalpur, Emporium, Rewa;Civil Department, Bhopal; Indore, Jabalpur and Gwalior. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Central Government. 2. A show cause notice was issued to the Appellant wherein demand of Service Tax of Rs.82,91,742/- was proposed under the category of Business Auxiliary Services ( BAS ) on the premise that the Appellant had received service charges of Rs.6,18,47,020/- and Rs.7,77,03,620/- during 2003-04 and 2004- 05 respectively which were in respect of BAS rendered by it for promoting the business of units, who were receiving the services. Thus, such service charges are susceptible to Service Tax of Rs.1,28,73,531/- under the category of BAS from 1.7.2003. 2.1 The Commissioner vide Order-in-Original No. 45/PC/ST/BPL/-ST/2016 dated 1.11.2016 held as follows: i) The Appellant is engaged in activities of promotion or mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom supervision charges, which were separately recorded in the balance sheet, and not income from service charges. 3. Consequently, the demand of Service Tax of Rs.58,16,513/- under the category of BAS for period 2004-05 was confirmed by the Commissioner. Further, the amount of Service Tax already paid by the appellant amounting to Rs.45,81,789/- was appropriated. The balance amount of Rs.12,34,724/- was confirmed. 4. Being aggrieved by the order, the appellant has filed the present appeal to assail the impugned order. 5. The learned counsel appearing for the appellant submitted that as a settled law, the burden to prove taxability is on the department. If the department alleges the Appellant to be liable to pay tax in a certain ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Service Tax can only be levied on a concrete service transaction and cannot be imposed merely on basis of assumptions. Hence, it must be established that income is on account of taxable services, the classification of which should have been properly alleged in the show cause notice. In absence of the Department discharging its burden of proof, towards framing of proper allegations, the demand cannot be sustained, and the impugned order is liable to be set aside. The learned counsel further stated that the nature of activity undertaken by the appellant was a composite works contract, and not BAS . 9. Learned Departmental Representative supports the findings in the impugned order and prayed that the impugned order may be upheld and appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine the issue on merit as well. We note that the impugned order has confirmed the demand of service tax on the income of Rs.64,21,843/- by observing that the contention of the appellant that it is covered under other litigation is factually incorrect. However, the impugned order has no finding as to how these charges are actually covered under the scope of BAS. A perusal of the nature of activities to which the said income pertains shows that they are service charges for the year 2004-05, received on account of Head Office, Bhopal; Emporium, Bhopal; Emporium, Jabalpur, Emporium, Rewa;Civil Department, Bhopal; Indore, Jabalpur and Gwalior. Further, bifurcation of the said income is between service charges received from Emporium division an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arried out by the appellant are in the nature of composite construction contracts involving supply of goods as well as provision of services and would appropriately be covered under works contract service. These activities have nothing to do with the promotion or marketing of goods for any client and is not covered under the scope of BAS. In this regard we rely on the decision of the Supreme Court in Commissioner vs Larsen Toubro Ltd. [2015-TIOL-187-SC-ST], where in it was held that composite contracts involving supply of goods coupled with provision of labour/services are covered under the scope of works contract services as defined in section 65(105)(zzzza) of the Finance Act, 1994 only with effect from 01. 06 2007. The relevant paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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