9911796707
TMI Blog2005 (11) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... lty of Rs. 65,000/- for failure of the appellant to collect Land pay Service Tax in accordance with the provisions of Section 68. The Commissioner .has passed this order, in the appeal, which was filed by the 'assessee against the order-in-original made by the Assistant Commissioner on 4th June, 2002, holding that the appellant was covered within the meaning of the expression consulting engineering firm, and, confirming the demand of Rs. 65,000/-under Section 70 of the Act with due interest chargeable under Section 75, and, imposing penalty of Rs. 500/- under Section 75A, and Rs. 1,000/- under Section 76 of the said Act. 2. In the show cause notice, which was issued on 3.1 .2002, the appellant was required to show cause as to why the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the MOU dated 1.1.1998, those services did not escape from the ambit of service tax network and the service rendered as shown in Para I (a), I (b), 1 (c) 1 (d), and 1 (f) of the agreement was covered under the service 'market research agency and management consultancy service' 4. In the appeal preferred by the appellants against the order of Assistant Commissioner, the Commissioner (Appeals) issued a show cause notice dated 29.6/7/2003 on the assessee calling upon them to show cause under Section 73 (1) of the said Act read with Section 84 (4) as to why the amount of service tax amounting to Rs. 65,000/- along with interest should not be recovered under Section 68 and Section 75, and, the penalty of Rs. 65,000/- should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson affected thereby has been given a reasonable opportunity of showing cause against such enhancement." 5.1 It is evident from the said proviso to sub-section (4) to Section 85, that the show cause notice that is contemplated under it, is only in respect of enhancing the service tax, interest or penalty. It does not authorise the Commissioner to issue any fresh show cause notice of the nature contemplated under Section 73 of the Act, which empowered the Assistant Commissioner or the Deputy Commissioner, as the case may be, inter alia, to serve notice on the person chargeable with the service tax which has escaped assessment, to show why he should not pay amount specified in the notice. The Commissioner (Appeals) has no authority to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, he could not have taken into consideration whether the services rendered by the appellant would fall under the other categories. The learned Commissioner has mis-construed Section 85 (4), which conferred the power of enhancement on the Commissioner (Appeals), and not any power to issue a show cause notice of a different nature relatable to Section 73 (1). The Commissioner (Appeal) had to confine to his power of issuing a show cause notice of the nature contemplated under Section 85(4), namely, for enhancement, and could not have issued a fresh show cause notice as contemplated under Section 73 of the said Act. 7. In the above view of the matter, the impugned order cannot be sustained, and is hereby set aside. The matter is remanded to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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