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TMI Blog2014 (7) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 65 (105) (zzb) readwith Section 65 (19) (vi). The Commissioner (Appeals) in the impugned order after giving a finding that the Appellant’s activity is not ‘support service of business or commerce’ has gone on to examine the taxability of their activity as ‘business auxiliary service’ under Section 65 (105) (zzb) readwith Section 65 (19) and in doing so, he has traveled beyond the scope of show cause notice which is not permissible in view of the judgment of the Apex court in the cases of CCE, Nagpur vs. Ballaspur Industries Ltd. reported in (2007 (8) TMI 10 - SUPREME COURT OF INDIA ) and CCE, Bangalore vs. Brindavan Beverages (P) Ltd. reported in 2007 (2007 (6) TMI 4 - SUPREME COURT OF INDIA). In view of this, the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in those trains. For cleaning of coaches and toilets, the appellant receive an amount from IRCTC on per coach basis which varies according to the duration of the journey from the starting station to the terminus. For supplying bed rolls to non ACs coaches, the appellant were charging a specified amount from the passengers, 12% of which was being paid to IRCTC as licence fee and the balance was being retained by them in respect of supply of bed rolls to passengers. In respect of AC coaches, the appellant were receiving a specified amount per bed roll from IRCTC. The Department was of the view that the appellant are providing the support services of business or commerce taxable under Section 65 (zzzq) readwith Section 65 (104c) of the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess support service taxable under Section 65 (105) (zzzq) readwith Section 65 (104c) of the Finance Act, 1994, that this activity of the appellant is not in the nature of support service of the business or commerce, that the Commissioner (Appeals) himself in para 9 and 10 of the impugned order has given a finding that the services provided by the appellant are not support service of business or commerce and has given a finding that the appellants activity is classifiable as business auxiliary service under Section 65 (105) (zzb) readwith Section 65 (19) ibid and has confirmed the demand on this basis, that the Commissioner (Appeals) has gone beyond the allegation made in the show cause notice, which is not permissible, as the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). The Commissioner (Appeals) in the impugned order after giving a finding that the Appellant s activity is not support service of business or commerce has gone on to examine the taxability of their activity as business auxiliary service under Section 65 (105) (zzb) readwith Section 65 (19) and in doing so, he has traveled beyond the scope of show cause notice which is not permissible in view of the judgment of the Apex court in the cases of CCE, Nagpur vs. Ballaspur Industries Ltd. reported in 2007 (215) E.L.T. 489 (S.C.) and CCE, Bangalore vs. Brindavan Beverages (P) Ltd. reported in 2007 (213) E.L.T. 487 (S.C.). In view of this, the impugned order is not sustainable. The same is set aside. The appeal is allowed. (Operative part of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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