2008 (5) TMI 247 - AT - Service Tax

On review, the Commissioner has confirmed service tax under the category of Business Auxiliary Services - SCN according to learned Counsel does not indicate under which heading the tax was required to have been paid - SCN did not raise demands under Business Auxiliary service - Commissioner in Review cannot go beyond the terms of the SCN - Therefore the confirmation of demands under new grounds prima facie is not justified stay granted

Summary

Issues:
1. Interpretation of show cause notice for service tax demand.
2. Classification of services under C&F Agents or Business Auxiliary Services.
3. Authority of Commissioner to confirm demands under new grounds.

Analysis:
1. The appellant was required to pre-deposit Service Tax and penalty due to a show cause notice demanding service tax on the Commission received for using the brand name "Toyota" in the manufacturer of lube oil. The issue arose as the show cause notice did not specify the category under which the tax was required to be paid. The Joint Commissioner dropped the proceedings under C&F Agents category, but the Commissioner later confirmed service tax under Business Auxiliary Services. The appellant argued that the Commissioner exceeded the show cause notice's terms as they did not handle goods and only allowed customers to use their brand name.

2. The appellant's counsel cited various judgments to support their argument, emphasizing that they did not fall under the category of C&F Agents. On the other hand, the Departmental Representative justified the demands confirmed under Business Auxiliary Services, relying on the Commissioner's findings. The Tribunal noted that the show cause notice did not mention demands under Business Auxiliary Services. Thus, the confirmation of demands under new grounds was considered unjustified, as the Commissioner could not go beyond the show cause notice's terms.

3. The Tribunal allowed the stay application, granting a waiver of pre-deposit and staying the recovery of demands. It was emphasized that the Commissioner, in review, cannot confirm demands under new grounds not mentioned in the show cause notice. Therefore, the confirmation of demands under Business Auxiliary Services was prima facie deemed unjustified. The appeal was scheduled for further hearing in due course, with the pronouncement and dictation of the order made in open court.