2008 (1) TMI 165 - AT - Service Tax

SCN does not give the basis of calculation for arriving at the demanded amount - since the basis of calculation of the demand has not been given to appellants, nor the longer period of limitation has been invoked specifically in show cause notice, the proceedings flowing from such a defective SCN, are neither legal nor proper - we set aside the impugned Order on the ground of limitation without going into the question of taxability of maintenance and repair charges prior to 1-7-03

Summary

Issues:
Impugned demand calculation basis, extended period of limitation invocation, applicability of case law, demand notice defects, taxability of services pre-2003.

Analysis:
The appellants contested an impugned demand made for the year 2000-2001, arguing that the show cause notice lacked the calculation basis for the demanded amount. Despite submitting transaction details, the Adjudicating Commissioner did not address them. The demand was based on figures from the Annual Report, but the appellants claimed the amounts were for maintenance and repairs only. The Adjudicating Commissioner's reliance on a specific case law was deemed inappropriate as there was no supply or maintenance of software in this case. The demand made beyond the normal limitation period was challenged as the longer period was not invoked in the show cause notice.

Regarding the extended period of limitation, the Bench noted that the repair and maintenance services were brought under the Service Tax Net from 1-7-03, and the demand pertained to the period before this inclusion. The demand notice was issued over four years after the relevant period, without invoking the extended limitation period in the show cause notice. The absence of allegations of fraud or misstatement further weakened the Commissioner's position. Citing a Supreme Court decision, the Bench emphasized that extension of limitation period must be explicitly stated in the notice, with clear allegations of suppression of facts.

Consequently, the Tribunal found the proceedings flawed due to the lack of calculation basis in the demand notice and the failure to specifically invoke the extended limitation period. The impugned order was set aside on the grounds of limitation, without delving into the taxability of maintenance and repair charges pre-1-7-03. The appeal was allowed, highlighting the defects in the show cause notice and the improper proceedings that followed.