2009 (7) TMI 736 - AT - Service Tax

Business Auxiliary Services - The appellant is carrying out promotional activities for marketing services provided by Western Union Inc. in India. Assessee, as an agent of W was engaged in delivery of money in India which were remitted through W from abroad. Assessee filed instant application for stay on pre-deposit requirement contending that it had applied for registration on 25.03.2005 i.e. 8 months earlier to investigation of DGCEI and, therefore, all material were before adjudicating authority beginning from 25.03.2005, who without looking into law relating to limitation. Held that - prima facie case bar of limitation could not be ruled out in the instant case and same also suffered from violation of natural justice, and therefore stay on pre-deposit of service tax was to be granted.

Summary

Issues:
1. Time-barred show-cause notice
2. Violation of natural justice in adjudication
3. Taxation of two types of services

Analysis:
1. Time-barred show-cause notice: The appellant argued that the show-cause notice issued on 8-2-2008 was time-barred as the Department had started an inquiry on 11-11-2005, and the appellant had applied for registration on 25-3-2005. The registration was granted on 6-10-2005, indicating that the nature of the appellant's activity was known to the revenue since 25-3-2005. Despite this, the investigation commenced on 22-8-2006, leading to parallel proceedings. The adjudicating authority passed the order on 3-2-2009 without considering the limitation issue, which the appellant contended was a legal infirmity.

2. Violation of natural justice in adjudication: The appellant raised concerns about the violation of natural justice, citing the authority's abrupt conclusion that the proceedings were within the limitation period despite the materials on record since 25-3-2005. The appellant argued that such a decision was not only a violation of natural justice but also unfair and unreasonable, as highlighted in paragraph 4.9 of the record.

3. Taxation of two types of services: The appellant contended that the remittance of money from abroad through Western Union Inc. for delivery in India should be considered an export service, eligible for exemption under Board's Circular No. 111/05/2009-ST. The appellant argued that the service provided to Western Union Inc. was as an agent, constituting an export of service. Additionally, the appellant disputed the levy of tax on reimbursement of expenditure from 1-7-2003 to 19-11-2003, stating that it was not related to any service provided for the imposition of service tax.

In the final order, the Tribunal found that the case might not be time-barred and could potentially suffer from a violation of natural justice. Therefore, the Tribunal ordered a status quo ante during the appeal's pendency. The issues in this case were deemed similar to other pending cases, leading to a directive for analogous hearing with other similar matters scheduled for 13-8-2009. Both parties were instructed to take notice for the hearing on that date.