2016 (4) TMI 776 - HC - Service Tax

Whether the Tribunal was justified in deleting the demand for service tax with interest on the premise that the show cause notice did not specify such demand - Goods Transport Operator Service - Held that - merely because in the show cause notice no legal provision is cited or wrong provision is mentioned, by itself may not be the ground for invalidating the action of the authority, if the power for such action can be traced to another source. However, in the present case, we are concerned with a far graver lapse on part of the adjudicating authority namely, of not giving any details of the unpaid service tax which he proposed to recover with interest. When the assessee was thus visited with show cause notice, he was clearly in dark about the nature and extent of service tax allegedly remained unpaid and which the authority wanted to recover. The show cause notice was completely general in nature, gives no details of unpaid service tax and merely called upon the assessee why such service tax with interest should not be recovered. The show cause notice was more in the nature of a fishing inquiry of the assessee s outstanding tax liability. It was perhaps because of this lacuna that the Commissioner in his revisional order had to be satisfied with directing the assessee to pay service tax on the gross amount of transport charges paid by them to the Goods Transport Operators. Therefore, the Tribunal was justified in deleting the service tax demand. - Appeal disposed of

Summary

Issues:
1. Challenge to the judgment of CESTAT dated 23.7.2003 in tax appeal No.1577/2003 by the Revenue.
2. Breach of provisions of the Finance Act, 1994 by the respondent assessee.
3. Retrospective amendment affecting the levy despite a Supreme Court judgment.
4. Order by the Commissioner of Customs for payment of service tax, interest, and filing tax returns.
5. Appeal filed by the assessee before the Tribunal.
6. Tribunal's decision to reverse the demand of service tax.
7. Substantial questions of law framed by the Court.
8. Justification of the Tribunal's decision in deleting the service tax demand.

Analysis:
1. The appeal was filed by the Revenue challenging the judgment of CESTAT regarding tax appeal No.1577/2003. The respondent assessee, engaged in Goods Transport Operator Service, was required to pay service tax and apply for registration under the Finance Act, 2004. A show cause notice was issued due to non-payment of service tax and obtaining registration, leading to penalty imposition consideration under various sections of the Finance Act, 1994, along with interest recovery for delayed payment of service tax.

2. The adjudicating authority dropped the proceedings following a Supreme Court judgment, but a retrospective amendment saved the levy. The Commissioner of Customs, as the revisional authority, initiated revision of the proceedings, directing the payment of service tax on transport charges and interest for delayed payment, along with filing tax returns for specific quarters.

3. The assessee appealed before the Tribunal, which reversed the decision on the demand for service tax, highlighting the lack of specific demand in the show cause notice. The Court framed substantial questions of law regarding the Tribunal's decision, questioning the adequacy of the show cause notice and the impact of not mentioning a specific section of the Finance Act, 1994.

4. The Court noted a controversy on whether the Tribunal was justified in deleting the service tax demand due to the lack of specificity in the show cause notice. It emphasized that while the absence of a legal provision citation in the notice may not invalidate the action if the authority's power can be traced elsewhere, the failure to provide details of the unpaid service tax to be recovered was a significant lapse. The show cause notice was deemed insufficient as it did not specify the nature and extent of the alleged unpaid service tax, resembling a fishing inquiry into the assessee's tax liability.

5. Ultimately, the Court upheld the Tribunal's decision to delete the service tax demand, considering the inadequacy of the show cause notice in providing essential details of the unpaid service tax. The tax appeal was disposed of accordingly, affirming the Tribunal's ruling on the service tax demand issue.