9911796707
TMI Blog2018 (6) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of Rs. 74,35,664/- with interest. Aggrieved, appellants have filed Appeal No. ST/157/2007. For the immediately subsequent period October 2006 to September 2007, two more show cause notices dated 1.4.208 and 20.10.2008 were issued, which resulted in adjudication orders dated 20.9.2008 and 16.2.2009 respectively, inter alia confirming service tax liability of Rs. 28,87,329/- and Rs. 2,03,748/- respectively. Appeal against these adjudication orders were rejected vide a common appellate order No. 50 & 51/2011 dated 25.4.2011. Hence Appeals Nos. 3 & 4/2012. In respect of a later period April 2010 to March 2011, show cause notice dated 22.10.2011 was issued inter alia proposing service tax demand of Rs. 92,23,567/- with interest thereon, which was confirmed by the adjudication authority vide Order No. 1/2014-15 dated 16.6.2014. Hence Appeal No. ST/41856/2014. 1.1 In ST/3 & 4/2012, vide order impugned herein (Order-in-Appeal No. 50 & 51/2011 dated 25.4.2011), the Commissioner (Appeals) dismissed the appeals for non-compliance of predeposit. These appeals were filed by appellant along with applications seeking to condone the delay. The COD applications were dismissed by the Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument, even if the order is said to have been delivered by RPAD on 9.5.11, which apparently has not happened in this case, no proof having been filed to support such delivery, which is the mandatory requirement as per Section 37(1)(a) of the Act, it is clear that the service of notice in the manner as prescribed under section37C(1)(a) has not been effected. 12. Further, it appears that the appellant was informed vide letter of the Superintendent (Appeals) dated 22.12.11, wherein he was informed about the order dated 25.4.11. Only thereafter, the appellant preferred the appeals on 4.1.12. In such circumstances, the appeals filed is very much in time. Therefore, in such view of the matter, this Court is of the considered opinion that question of delay does not arise in this case, as the filing of the appeals are well within time. Accordingly, the substantial question of law is answered in favour of the appellant/ assessee and against the respondent / Revenue. 13. In the result, the order of the Tribunal is set aside and the appeals are allowed. The Tribunal is directed to take up the appeals and stay eptitions on file and dispose of the same on merits and in accordance with law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the agreement of the appellant was with the President of India owning the Indian Railways. e) The appellant is an individual and cannot be equated with commercial concern. Demands prior to 01.05.2006 are not legally tenable based on plethora of decisions including those reported under 2009 (16) S.T.R. 61 (Tri.-Del.); 2017 (49) S.T.R. 454(Tri.-Del.); 2017 (49) S.T.R. 552 (Tri.- Del.); 2017 (51) S.T.R. 312 (Tri. -Del.) and 2017 (3) G.S.T.L. 452 (Tri. - Del.) 4.3 The activities cannot be called customer care because to satisfy that criteria, "client" is required to be a professional. 4.4 The ld. counsel takes us to the DGST Order dated 13.12.2005 wherein in para 14 it is mentioned that ‗client' has not been defined under the Act. Hence the dictionary meaning of the word is to be taken. Ld. counsel contends that the word "client" defined in the dictionary means "a person or entity that employs a professional for advice or help in that professional line of work". Being engaged in supply of bed rolls after duly laundered and cleaned, they cannot be called as a professional. 4.5 The ld. counsel also draws attention to section 99 of the Finance Act, 1994 which was inserted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944(1 of 1944). Explanation.-For the removal of doubts, it is hereby declared that for the purposes of this clause, "information technology service" means any service in relation to designing, developing or maintaining of computer software, or computerised data processing or system networking, or any other service primarily in relation to operation of computer systems;" 6.2 The department is seeking to bring the activities of the appellant under Section 65(19)(iii) namely, as a service in relation to "Customer Care Service" provided on behalf of the client. Department has taken the view that the activity of supplying bed rolls to the upper class passengers of railways without collecting fees / charges directly from the passengers is tantamount to providing provision of Customer Care Service on behalf of the Railways and hence the appellants are exigible to service tax liability under BAS. Discernably, Railways supply bed rolls to upper class passengers without collecting any fees. This supply is understood to be as a customer care initiative on the part of railways for the upper class passengers who obviously pay much higher ticket / service charges c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work; that they are only supplying bed rolls involving only laundering and labour work, hence appellants are not a professional or a technical person. We are unable to agree with the Ld. Advocate on this point. It is not that parameters of every customer care activity involves technical or professional expertise. Ld. Advocate has also argued that "Customer Care Service provided on behalf of client" will cover only business transactions, more particularly of goods coupled with services; that on sale of goods or services, the customer is having right to ask for technical / professional services for rectification of any deficiency which would alone mean "Customer Care service". This argument also does not wash. On the other hand, in the present era, there are customer cares which would be required even for services rendered and to say that customer care will be required only in sale of goods is definitely a misconception. 6.6 Another argument of the Ld. Advocate is that no customer care to passengers would be possible since railway transportation service is a public transport and there is absolutely no personal relationship with these passengers. Hence passengers are not customers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re outsourced and they are provided by a service provider like the appellants herein on behalf of Railways. Hence Section 99 will not help the case of the appellant. 6.9 Ld. Advocate has drawn our attention to number of case laws. However, we find that in Doon's Caterers Vs CST Delhi (supra), RC Goel Vs CCE New Delhi and Deepak & Co. Vs CCE Delhi upon by the appellant, the dispute therein concerns the department having sought to bring the similar service under the scope of "Support Service of Business or Commerce" under Section 65 (105) (zzzq) read with Section 65 (104c) of the Finance Act, 1994. In the Doon's Caterers case, the appeal was allowed because even though the proceedings sought to demand service liability from the appellants therein under Support Services, the Commissioner (Appeals) went beyond the scope of SCN and held the services as falling under BAS. 6.10 On the other hand, as found by the Tribunal in the case of RC Goel Vs CCE New Delhi [2017 (5) GSTL 324 (Tri.-Del.)] also relied upon by the appellant, although department sought to bring this services under BSS, the Tribunal took the view that such services are more appropriately classifiable under 'Business Auxi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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