2017 (2) TMI 156 - AT - Service Tax

Validity of SCN - an error in the invocation of provisions - Section 11A of Central Excise Act, 1944 invoked to raise demand under service tax - Held that - Revenue cannot enjoy the benefit of mistake committed in invocation of provisions of law. In the show cause notice there has been an error in invocation of proper provisions for demand of service tax. Section 11A of Central Excise Act, 1944 has been invocated in the said show cause notice and said Section 11A does not authorize Central Excise office to demand Service Tax - SCN not sustainable - appeal allowed - decided in favor of assessee.

Summary

Issues:
1. Applicability of Section 11 of Central Excise Act, 1944 for demand and recovery of service tax.
2. Sustainability of show cause notice invoking Section 11A of Central Excise Act, 1944 for service tax.

Analysis:

Issue 1: Applicability of Section 11 of Central Excise Act, 1944
The appeal was filed against an Order-in-Appeal passed by the Commissioner of Central Excise & Customs, Kanpur, regarding the demand of Service Tax on commission received for promoting sales. The appellant argued that Section 11 of the Central Excise Act, 1944, which was invoked for the demand, is not applicable to service tax under the Finance Act, 1994. The original authority confirmed the demand under Section 11 of the Central Excise Act, 1944, along with Section 73 of the Finance Act, 1994. The Commissioner (Appeals) upheld this decision. However, the Tribunal held that the provisions of the Central Excise Act, 1944, specifically Section 11, cannot be used for the demand and recovery of service tax, as service tax falls under the Finance Act, 1994. Therefore, the appeal was allowed, and the Order-in-Appeal was set aside.

Issue 2: Sustainability of show cause notice invoking Section 11A of Central Excise Act, 1944
The appellant contended that the show cause notice was not sustainable as it invoked Section 11A of the Central Excise Act, 1944, for demanding service tax, which is not applicable to service tax under the Finance Act, 1994. The Revenue argued that despite the error in invoking provisions, the show cause notice was sustainable on merit. The Tribunal considered both arguments and held that the Revenue cannot benefit from the mistake made in invoking the provisions of the law. It was noted that Section 11A of the Central Excise Act, 1944, does not authorize the Central Excise office to demand service tax. Therefore, the Tribunal concluded that the show cause notice was not sustainable due to the error in invoking the proper provisions. Consequently, the impugned Order-in-Appeal was set aside, and the appeal filed by the appellant was allowed, granting them consequential relief as per law.

This judgment highlights the importance of correctly applying the relevant provisions of law in tax matters and emphasizes the need for precision in legal procedures to ensure the proper demand and recovery of taxes.