2008 (2) TMI 179 - AT - Service Tax

Adjudicating authority should not go beyond the scope of the SCN to reclassify the service as Storage and Warehousing Service where demand was raised under head Banking and other Financial Services since Share Transfer Agents service was specifically brought under tax net w.e.f. 1-5-06 without amending the definition of Business Auxiliary Service , then dept. is not allowed to demand duty under Business Auxiliary Service for the prior period

Summary

Issues:
1. Re-classification of service for service tax liability.
2. Taxability of service as "Share Transfer Agent" prior to 1-5-2006.
3. Penalty determination after the decision on tax liability.

Issue 1: Re-classification of service for service tax liability
The appeal challenged an order by the ld. Commissioner (Appeals) who remanded the case for fresh adjudication by the original authority. The dispute revolved around the reclassification of a service initially categorized as "Banking and other Financial Services" to "Storage and Warehousing Service" by the adjudicating authority. The Commissioner (Appeals) rightly set aside this reclassification, emphasizing that the original authority must adhere to the scope of the show-cause notice (SCN) and the law while providing the assessee a fair opportunity to present their case.

Issue 2: Taxability of service as "Share Transfer Agent" prior to 1-5-2006
The remaining part of the demand pertained to the gross amount collected for a service labeled as "Business Auxiliary Service." The appellants contended that they operated as a "Share Transfer Agent" and were not liable for service tax before 1-5-2006, citing the insertion of clause 95(a) under Section 65 of the Finance Act, 1994. Reference was made to stay orders by the Bangalore Bench, indicating that service tax on a 'Share Transfer Agent' was not applicable pre-1-5-2006. The Tribunal highlighted that the service was specifically taxed from 1-5-2006 and emphasized that without a corresponding amendment to the definition of "Business Auxiliary Service" before that date, no service tax could be imposed on the 'Share Transfer Agent' service for the prior period. Thus, the demand for tax on this service was set aside.

Issue 3: Penalty determination after the decision on tax liability
With the decision favoring the assessee on part of the tax demand, the Tribunal directed the original authority to reassess any potential penalty after hearing the party. The penalty determination was to be revisited in the remanded proceedings following the resolution of the tax liability issue. The appeal was disposed of accordingly, providing clarity on the taxability of the services in question and the subsequent penalty assessment process.