2024 (8) TMI 1210 - AT - Service Tax

Jurisdiction of the Department of Revenue to issue SCN - SCN did not establish that the appellant was providing any service to anybody which was leviable to service tax - time limitation - HELD THAT - The SCN did not establish that the appellant was providing any service. It is also noted that the SCN was sent to some address in Navi Mumbai whereas the appellant is conducting his business at Dombivli, Thane which is a place different than Vashi, Navi Mumbai and, therefore, the appellant neither received the show cause notice nor the order-in-original till such time the appellant made a request to provide the same somewhere in November 2022. The activity carried out by the appellant was sale of fruits which is covered by entry (e) under Section 66D of Finance Act, 1994 which deals with negative list. During the relevant period, Department of Revenue did not have any jurisdiction to issue any show cause notice demanding service tax from the appellant. The impugned order is set aside - appeal allowed.

Summary

Issues:
Jurisdiction of the Department of Revenue to issue show cause notice demanding service tax from the appellant.
Timeliness of the appeal filed before the Commissioner (Appeals).

Analysis:

Jurisdiction Issue:
The appellant, a fruit seller, did not obtain Service Tax registration as the services provided were not covered under the negative list. The Department of Revenue issued a show cause notice demanding service tax based on best judgment method. The original order was passed ex parte, penalties were imposed, and the appellant was informed at an address in Vashi, Navi Mumbai. However, the appellant, residing and conducting business in Dombivli, Thane, did not receive the notice or order until requesting certified copies in November 2022. The appellant argued that the activity of selling fruits falls under the negative list of the Finance Act, 1994, and thus, the Department lacked jurisdiction to demand service tax. The Tribunal agreed, stating that the appellant did not provide any taxable service, and the Department had no jurisdiction to issue the notice. Consequently, the impugned order was set aside, and the appeal was allowed.

Timeliness Issue:
The appellant submitted evidence, including an affidavit, Aadhaar card, electricity bill, and PAN card, establishing his residence in Dombivli, not Vashi, Navi Mumbai. The appellant's counsel argued that the appeal filed before the Commissioner (Appeals) was timely, as the appellant only received the show cause notice and order-in-original after requesting them in November 2022. The counsel contended that the appeal was filed within the statutory time limit after making a pre-deposit. The Tribunal accepted the appellant's argument, ruling that the appeal was filed on time, and the Commissioner (Appeals)'s decision to reject it as time-barred was unsustainable. The appellant was granted consequential relief in accordance with the law.

This judgment highlights the importance of jurisdiction in tax matters and the significance of timely appeals. It underscores the need for proper communication and service of notices to ensure due process and fairness in tax proceedings.