TMI Blog2024 (3) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge has held the said amount to be a brokerage or commission. This particular perusal is sufficient to hold that Commissioner (Appeals) has gone beyond the scope of show cause notice which is not at all permissible. Confirming a demand on a different count which was not brought to the notice of the assessee/appellant before confirmation of the service tax amounts to confirmation of tax under new categories and the same is not legally permissible as it was held by this Tribunal in the case of M/S BALAJI CONTRACTOR VERSUS COMMISSIONER OF CENTRAL EXCISE JAIPUR-II [ 2017 (3) TMI 181 - CESTAT NEW DELHI] . Hon ble Supreme Court also in the case of COMMISSIONER OF CUSTOMS, MUMBAI VERSUS TOYO ENGINEERING INDIA LIMITED [ 2006 (8) TMI 184 - SU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the audit of appellants record, department observed that the appellant has received purchase orders from various customers like M/s. Indian Railways, M/s. L T Ltd., M/s. Rourkela Steel Plant etc, towards supply of elastic rail clips and metal liners. The prices in the said purchase order were found to be on FOR basis (excluding freight). Department also observed that from their buyers, the appellants have collected an amount in excess of actual freight incurred by them towards the transportation and delivery of goods to said buyers in lieu of having arranged and facilitating the transportation and delivery of the goods for them. This activity was alleged to fall under the scope of Business Auxiliary Activity. Resultantly, vide Show Cause N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE, Jaipur-II reported as 2017 (52) STR 259 (Tri. Del.) 3.1 With respect to the merits of the case, while impressing upon the definition of service given under Section 65B(44) of the Finance Act, 1994, it is mentioned that collection of excess freight charged cannot be termed as the amount of consideration for rendering service. The decision of this Tribunal in the case of Commissioner of Service Tax, New Delhi Vs. Karam Freight Movers reported as 2017 (4) GSTL 215 (Tri. Del.) is relied upon. With these submissions, the order under challenge is prayed to be set aside and the appeal is prayed to be allowed. 4. While rebutting these submissions, learned Departmental Representative has mentioned that the department proceeded for the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liary Service. The order under challenge has held the said amount to be a brokerage or commission. This particular perusal is sufficient for us to hold that Commissioner (Appeals) has gone beyond the scope of show cause notice which is not at all permissible. Confirming a demand on a different count which was not brought to the notice of the assessee/appellant before confirmation of the service tax amounts to confirmation of tax under new categories and the same is not legally permissible as it was held by this Tribunal in the case of Balaji Contractor (supra). Hon ble Supreme Court also in the case of Commissioner of Customs, Mumbai Vs. Toyo Engineering India Limited reported as 2006 (201) ELT 513 (SC) has held that the department cannot t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies under clause (i) to clause (vii) of Section 65(19) of Finance Act which defines Business Auxiliary Service. The buyer of goods manufactured by appellant cannot be held to be the service recipient, he being the party to contract of sale/purchase order. There is no contract between appellant and the transporter. No question of later being the service recipient at all arises. Thus there is no activity of appellant which may be called as Business Auxiliary Service. No question arises of providing Business Auxiliary Service as is alleged in show cause notice by the appellant to the said buyer. 5.4 Coming to the plea taken by the Commissioner that the amount in question is nothing but a brokerage and commission, we hold that the mere activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The appellants would then have had the opportunity of meeting the precise case made out by the Revenue. 5.5 This Tribunal also in the case of Balaji Contractor (supra), Para 7 thereof reads as follows: 7. We have heard both the sides and perused the appeal records. Admittedly, the show cause notices issued to the appellant sought to demand/recover Service Tax under the taxable category under Cargo Handling Services. The proposal was made after due examination of the scope of services rendered by the appellant. The same was confirmed by the original authority. On appeal, the first appellate authority examined the same scope of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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