2012 (4) TMI 132 - AT - Service Tax

Application for stay - The appellants are engaged in the business of promoting and marketing vacations and trips conducted by foreign principals as General Sales Agent - An enquiry regarding the commission retained by the appellants was made and it was found to the department that the amount retained by the appellants is chargeable of Service Tax under the category of Travel Agent Service - Held that no show-cause notice has been issued in this matter and there is no adjudication order against the appellants, therefore, no appeal was maintainable before the Commissioner (Appeals). Admittedly, the department has not challenged the impugned order before us - Appeal is allowed

Summary

Issues:
Appeal against impugned order with application for stay; Classification of services under Service Tax liability; Validity of show-cause notice; Jurisdiction of Commissioner (Appeals); Disposal of appeal without pre-deposit; Adjudication order requirement; Legality of impugned order.

Analysis:
The appellants appealed against the impugned order and sought a stay. The case involved an enquiry by the Assistant Commissioner of Service Tax regarding the appellants' activities as General Sales Agents for foreign principals. The appellants appointed Travel Agents for ticket bookings, who deducted commissions and paid the balance to the appellants. The department found the retained amount by the appellants chargeable under "Travel Agent Service" for Service Tax. Notably, no show-cause notice proposing the demand was issued; instead, an enquiry letter was sent. The Commissioner (Appeals) classified the services as "Business Auxiliary Services" during the impugned period and as "Transport of persons embarking from port in India by cruise ship" after that period, holding the appellants liable for Service Tax. However, the Tribunal observed that since no show-cause notice was issued, and there was no adjudication order against the appellants, the appeal before the Commissioner (Appeals) was not maintainable. The department did not challenge the impugned order before the Tribunal. Consequently, the Tribunal held the impugned order passed by the Commissioner (Appeals) as not legally valid and set it aside, allowing the appeal to be disposed of without pre-deposit.

This judgment highlights the importance of procedural requirements in tax matters, emphasizing the necessity of show-cause notices and adjudication orders for maintaining appeals. It also underscores the significance of jurisdictional issues and the need for proper classification of services for Service Tax liability determination. The Tribunal's decision to set aside the impugned order due to procedural irregularities serves as a reminder of the legal principles governing tax disputes and the adherence to due process.