M/S. ITC LTD. Vs. C.S.T.

JUDGEMENT

(1.) HEARD Shri , ld. Counsel for the appellant and Shri Pramod Kumar (Jt. CDR) and Shri Govind Dixit, Authorised Representative for the respondent -Revenue. This is the assessees appeal preferred against a common order in original dated 29.5.2012 passed in respect of two adjudication order Nos. 101 -102/GB/2012 dated 29.5.2012 by the Commissioner, Service Tax, Delhi. Two show cause notices dated 21.4.2010 and 20.4.2011 were issued for the period April 2008 to March 2011 alleging that the assessee had provided Business Auxiliary Service and had failed to remit tax on amounts received for providing such service. Apart from impeaching the adjudication order on merits, ld. Counsel for the appellant urges a preliminary ground of challenge, namely, that the show cause notices were incoherent and did not spell out what relevant ingredients of the relevant statutory provision apply to the service provided, to warrant attribution of the liability; and since the initial step for initiation of proceedings leading to the adjudication order being unsustainable, the adjudication must fail, for violation of due process and transgression of principles of natural justice.

(2.) BOTH the show cause notices (covering different periods) are similarly phrased and structured. Having regard to the allegation of vagueness and consequent denial of reasonable opportunity, the show cause notice dated 21.4.2010, considered as illustrative of both the notices, is considered for analysis.

(3.) THE show cause notice dated 21.4.2010 after setting out preliminary facts, as to the assessee being a registrant with the Department for providing management consultancy and other taxable services, states that the assessee had filed a refund claim of service tax [under Section 83 of the Finance Act, 1994 (the Act)] i.e. of service tax remitted in respect of management fee received from various hotels, claiming that tax was remitted under an erroneous interpretation of law; that the assessee had discontinued paying service tax on such income w.e.f. 1.4.2008; that as per the Act, a new taxable category namely Business Auxiliary Service was introduced, defined under Section 65(19) read with Section 65(015)(zzb); and that the assessee was therefore liable to tax for having provided Business Auxiliary Service. In Para (5) of the show cause notice, Section 65(19) prior to its amendment with effect from 16.6.2005 is extracted, a situation not relevant for the purposes of this appeal. In Para 6, Section 65(19)(i) post amendment is set out. Para 7 of the show cause notice refers to other agreements between the assessee and other service receivers M/s Srinivasa Resorts Ltd., M/s Laxmi Distributors P. Ltd. and also Adyar Gate Hotels. This paragraph states that the assessee had collected service tax from M/s Srinivasa Resorts Pvt. Ltd. and M/s Laxmi Distributors P. Ltd. and had remitted the tax so collected to Revenue but since M/s Adyar Gate Hotels had refused to pay the service tax component to the assessee, no service tax relatable to the services provided to Adyar Gate Hotels was remitted by the petitioner/assessee.