2010 (2) TMI 347 - AT - Service Tax

Order at variance with SCN- The assessee did not pay this amount since it pertained to activity of storage of the news print which did not come under the taxable activity of Cargo Handling Services. Held that- activity classified under storage and warehousing service in impugned order. Order at variance with proposals in Show Cause Notice and such order not sustainable.

Summary

Issues:
1. Classification of services under 'Cargo Handling Services' or 'Storage and Warehousing Services'
2. Rejection of refund claim and demand based on classification issue
3. Compliance with show cause notice requirements

Analysis:

Issue 1: Classification of services under 'Cargo Handling Services' or 'Storage and Warehousing Services'
The judgment revolves around the classification of services provided by the appellant under either 'Cargo Handling Services' or 'Storage and Warehousing Services.' The Commissioner modified the order to classify certain activities like storing, stacking, and shifting under 'storage and warehousing services' instead of 'cargo handling services.' The appellant contested this classification, leading to a dispute over the correct tax liability for the services rendered.

Issue 2: Rejection of refund claim and demand based on classification issue
The appellant filed a refund claim for non-reimbursed tax amounting to Rs. 1,96,581/-, which was rejected by the original authority citing that the amount pertained to 'Cargo Handling Services.' Additionally, for the period July 2005 to September 2005, a tentative short payment of service tax under 'Cargo Handling Services' was noted, which the appellant disputed, claiming it was related to storage activities not falling under taxable cargo handling services. The Commissioner upheld the original authority's decision, leading to a challenge by the appellant.

Issue 3: Compliance with show cause notice requirements
The appellant challenged the order of the Commissioner (Appeals) on the grounds that the classification of activities under 'storage and warehousing services' was not part of the show cause notice. The appellant cited various case laws to support their argument that if the services did not align with those alleged in the show cause notice, no service tax was payable. The appellant's contention was that the impugned order did not conform to the proposals in the show cause notice, rendering it unsustainable in law.

In conclusion, the Tribunal, considering the case laws cited by the appellant, found that the impugned order did not align with the show cause notice and, therefore, was not sustainable. The appeals filed by the appellant were allowed, providing them with consequential relief. The judgment highlights the importance of adherence to the specifics of show cause notices in tax matters to ensure fair and lawful treatment of taxpayers.