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TMI Blog2015 (6) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) as the show cause notices were challenged on the very foundation that they are vague and without particulars as to classification of works that attracts service tax. - Matter remanded back - Decided in favour of assessee. - C.M.A. NOS. 764 TO 788 OF 2015, M.P. NOS. 1 OF 2015, CM.A. NO. 764 OF 2015 - - - Dated:- 30-4-2015 - The Honourable Mr. Justice R. Sudhakar And The Honourable Ms. Justice K. B. K. Vasuki,JJ. For the Appellants : Mr. K. Jayachandran For the Respondents : Mr. V. Sundareswaran JUDGMENT (Delivered By R. Sudhakar, J.) Aggrieved by the common order of the Tribunal in remanding the matters back to the adjudicating authority in the appeal filed by the Revenue, the respective appellants/assessees are before this Court by filing the present appeals raising the following questions of law :- i) Whether the finding of the 1st respondent Tribunal that the appellant rendered taxable service and was liable to pay service tax, merely on the ground of receipt of payments from NLC? ii) Whether the 1st respondent Tribunal is justified in ignoring the decisions of the co-ordinate Bench reported in 2009 (13) STR 542, 2011 (22) STR 571 for the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature, scope and coverage of individual contracts entered into by the appellants with NLC have not been considered in the notice for demand of service tax; (4) that in the absence of specific proposal for classification and allegation that the service rendered against a given contract would be classifiable under a particular provision of Finance Act, 1994 (Section 65 (105)), the demands made on the generic basis, merely on the basis of payments received from NLC by such appellants, should not have been confirmed in the orders-in-original; (5) that the Ld. Commissioner of Central Excise, Puducherry, vide his Orders-in-Original Nos.82 and 89 dated 29.12.2009 (relied upon in all the appeals) dropped the proceedings in both the cases only on the ground of non-specification of classification of services, in the notices. The legal position in this regard is also settled in favour of the appellants as per the following order of the Hon'ble CESTAT : (a) 2009 (13) STR 542 (Tri. Chennai) in the case of Coramandel Fertilizers Ltd. - Vs - CCE, Chennai and 2011 (22) STR 571 (Tri. Chennai) in the case of United Telecoms Ltd. - Vs - CST, Hyderabad; (6) that all demands have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sees both on vagueness of show cause notice and also on the plea of limitation and set aside the order of adjudication. For better clarity, the relevant portion of the order of the Commissioner (Appeals) is extracted hereinbelow :- 6.1 I find that in the impugned SCNs issued by the department there were no allegation as regards to the category under which the appellants are liable to service tax and the SCNs simply state that the appellants are providing taxable service and have received payments for such services and therefore entire amount received is liable to service tax as could be seen from the impugned SCNs. 6.2 In this connection it is to be pointed out that Hon'ble CESTAT in the case of CCE, Chandigarh - Vs - Arpit Advertising reported in 2011 (23) STR 460 (Tri. Del.) has held as follows:- Appeal to Appellate Tribunal - Lack of clarity in appeal - SCN proposed demand based on figures in balance sheet under Head 'Commission/Discount/Inventive' without investigating true nature of service and its taxability - SCN deals with barter agreement but same not enclosed in appeal paper - Nature of service rendered not clear - Appeal not filed with clarity as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, each category of service carries its own valuation and different effective dates. It is observed that there are some amounts which are not supposed to be included under taxable category. The impugned orders too failed to specify the category of service(s). In this connection it is pertinent to point out that Hon'ble CESTAT in the case of Hi-Cons Building Products - Vs - Commr. of C.Ex. Cus. S.T., Cochin, reported in 2011 (23) STR 366 (Tri. Bang) has held as follows :- Order - Non-speaking order - Show cause notice classifying activity under Commercial or Industrial Construction Service - Adjudication order containing different conclusion that Erection, Commissioning and Installation service besides construction service provided - Entire demand confirmed without break-up of amount attributable to services rendered and order silent on exact services rendered - Impugned order set aside - Matter remanded to adjudication authority to consider afresh - Sec. 73 of Finance Act, 1994. (Para 5). Further Hon'ble High Court of Madras in the case of M.Suganthi - Vs - Asst. Commr. of C.Ex., Pollachi, reported in 2011 (23) STR 7 (Mad.) has held as follows :- Demand - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 2002 and there were meetings of senior level officers of the Department, including the Commissioner of Central Excise, Puducherry, with the NLC officials and the assessees in NLC. Any allegation of suppression of facts with intent to evade payment of tax was erroneous, since the basis for the show cause notices to the assessees were the information reportedly provided by NLC or assessees themselves in some cases through their balance sheets. (g) The contention/grounds of appeal of the Department that the assessees did not provide details/records etc., cannot be a valid ground to shift the onus of classification of the activity of assessees under one or more of the taxable services. (h) The Department did not follow any of the legal procedures prescribed under Section 14 of Central Excise Act, 1944 (summon procedure to collect information) read with Section 83 of the Finance Act, 1994 or under Section 72 of the Finance Act, 1994 (Best Judgment assessment procedure), in any of the cases covered by the present batch of appeals. No specific investigation was carried out or enquiries made with NLC authorities, by the Department in any of the cases in terms of the above provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned standing counsel appearing for the respondent/Department, on notice and instructions, submitted that the appellants were rendering the works mentioned in the show cause notices to NLC and therefore, they are liable to pay tax. The appellants are registered for the services, as mentioned in the show cause notices, and have been rendering the services to NLC and receiving payment thereof and, therefore, they are liable to pay service tax and the tax has been rightly demanded by the Department. It is further submitted that the remand by the Tribunal is an open remand with no fetters on both the sides and the appellants cannot have any grievance with the said order as they are only directed to show the taxable services rendered by them for the purpose of payment of tax. In such circumstances, it is submitted that no interference is called for with the order of the Tribunal. 11. Heard the learned counsel appearing for the appellants/assessees and the learned standing counsel appearing for the respondent/Department and perused the materials available in the typed set of documents. 12. Before proceeding further to decide the issue, it is relevant to note that it is the stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) as the show cause notices were challenged on the very foundation that they are vague and without particulars as to classification of works that attracts service tax. 14. Further, the Tribunal, while glossing over the various decisions of the Tribunal and the Supreme Court, has come to an erroneous conclusion that the only grievance of the assessees is that the Revenue did not give break-up of the amounts with reference to each service rendered by them. This finding of the Tribunal appears to be a fallacy on fact. As extracted by us in the earlier portion of the order, the various contentions raised by the present appellants before the Commissioner (Appeals) shows that that issue as raised is not pure and simple break-up of amounts, which should have been shown in the show cause notice, but the show cause notices itself being vague and bereft of details as to the nature of taxable services rendered by the appellants/assessees to NLC. 15. Furthermore, we also find that the issue of limitation has been answered by the Commissioner (Appeals) in favour of the present appellants, but which finding has not been considered by the Tribunal while discussing the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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