9911796707
TMI Blog2005 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... axable services under proviso to Sec. 73(1) of the Finance Act, 1994. II. Interest should not be paid by them on the amount demanded at (I) above under Sec. 75 of the Finance Act, 1994. III.A penalty should not be imposed on them under Sec. 76 of the Finance Act, 1994. IV.A penalty should not be imposed on them under Sec. 78 of the Finance Act, 1994." 3.The petitioner was asked to produce all the evidence upon which they intended to rely in their defence and to indicate in their written reply whether they wished to be heard in person before the case was adjudicated. 4.The petitioner, a company registered under the Companies Act, provides various financial services and, among several activities, it earlier functioned as the Registrar and Transfer Agent for various corporate bodies. It is their case that the service rendered by them as Registrar and Transfer Agents of Corporate bodies, did not fall within the definition of "Business Auxiliary Service" and they were therefore not liable for payment of service tax. 5.Service Tax was introduced in the Finance Act of 1994. "Business Auxiliary Service" was brought within the purview of the service tax in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation technology service" means any service in relation to designing, developing or maintaining of computer software, or computerized data processing or system networking, or any other service primarily in relation to operation of computer systems;" 6.The services covered, under sub-clauses (iv), (v) and (vi) above, were added to the pre-existing definition of "Business Auxiliary Service", prescribed by Finance Act of 2003, with effect from 10-9-2004. Petitioner admits that its activity falls within the purview of sub-clause (vi) of Section 65(19) of the Finance Act of 2004. They, however, contend that the activity of "Registrar and Transfer Agency Service" carried on by them earlier, which was hived of and transferred for valid consideration in favour of M/s. Karvy Computer Shares Private Limited with effect from 1-2-2004, did not come within the definition of "Business Auxiliary Service" prior to 10-9-2004. It is their case that the show cause notice dated 3-1-2005, issued by the 2nd respondent, was under the erroneous supposition that Section 65(19) of Finance Act, 2003 encompassed the nature of activity carried on by the petitioner, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness Auxiliary service" to mean any service in relation to any incidental or auxiliary support service, such as, billing collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relation services and includes services as a commission agent, but does not include any information technology service. While the petitioner contends that it was not carrying on any activity relating to billing collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relation services or service as a commission agent and therefore did not fall within the purview of Section 65(19)(iv), it is the case of the respondents that the services referred to in sub-clause (iv) of Section 65(19) of the Finance Act, 2003 are merely illustrative and not exhaustive of all "incidental or auxiliary support services". Sub-clause (iv) of Section 65(19) of Finance Act, 2003 relates to any incidental or auxiliary support service. Learned Assistant Solicitor General, appearing on behalf of the respondents, submits that the six services referred to in Section 65(19)(iv) of Finance Act, 2003 i.e., (1) Billing collectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, including services provided to a client by a commercial concern in relation to the business auxiliary services of provision of service on behalf of the client, from the whole of the service tax leviable thereon, under Section 66 of the Finance Act, which is received by the service provided prior to 10-9-2004. This notification has neither been referred to in the show cause notice issued by the 2nd respondent on 3-1-2005 nor in the counter-affidavit filed before this Court. Whether or not the petitioner is entitled for exemption under the Central Government Notification No. 25/2004, dated 10-9-2004 is for the 2nd respondent to examine and decide in accordance with law. The petitioner is said to have submitted an explanation on 14-2-2004 setting out in detail its reply to the show cause notice dated 3-1-2005. In the said explanation, the petitioner, among other issues, has also taken the plea of limitation. 11.Interference under Article 226 of the Constitution of India, where the validity of a show cause notice is under challenge, is normally, limited to cases where the show cause notice as issued, is without jurisdiction or is tainted with malice, as these are matters which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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