CANARA BANK Vs. COMMISSIONER OF SERVICE TAX, BANGALORE

JUDGEMENT

(1.) THE appellant is a nationalized bank. They have obtained clearance from the Committee of Secretaries to pursue the matter. The appellant had availed the services of M/s. Visa International Service Association, USA falling under the category of Banking and Financial Services, Credit Card Services and Goods Transport Services. Since they have not taken the registration for paying the service tax for the Credit Card Services, the Department proceeded to place them under the category of Banking and Financial Services under Section 65(12)(vii) of the Finance Act, 1994. The appellants submission is that they are not covered under the category of Banking and Financial Services but appropriately classifiable under the category of Credit Card Services which is inserted in the Finance Act, 2006. It is the submission that the period in question is August, 2002 to September, 2004, but the show cause notice has been issued much latter by invoking larger period. They are required to be pre -deposited a total duty amount of Rs. 19,45,658/ - along with like sum of penalty. The appellants have taken several defense with regard to the non -inclusion of them under the category of Banking and other Financial Services. After the introduction of the said category of Credit Card Services they are paying the service tax. They are contesting for the previous period on the ground that like services carried out by them would not come under the category of Banking and other Financial Services. All the pleas were considered by the Commissioner (Appeals) and dismissed the appeal. The learned Chartered Accountant took various pleas and relied on the Larger Bench judgment rendered in the case of M/s. Hindustan Zinc Ltd. reported in 2008 (11) S.T.R. 338 (Tribunal - LB) = 2008 -TIOL -1149 -CESTAT -DEL -L.B. wherein it has been held that the date of applicability of new category will be applicable for the purpose of demanding service tax and the category which is not applicable cannot be imposed. The ratio of the cited judgment has been followed by this Bench in the case of M/s. Firepro Systems Pvt. Ltd. v. Commissioner of Service Tax, Bangalore [2008 (10) S.T.R. 606 (Tribunal) = 2008 -TIOL -1377 -CESTAT -BANG] wherein it has been held that the latter inclusion of some aspect in the scope of levy will have to be taken as non -inclusion of the same earlier, when the other portion remained the same. The learned Chartered Accountant also refers to the ruling rendered by the Delhi Bench in the case of M/s. Bharat Aluminum Co. Ltd. v. CCE, Raipur [2008 -TIOL -1401 -CESTAT -DEL] with regard to the inclusion in the new category and exclusion in the old category. He pleaded that there was no intention to evade payment of service tax and that there is no suppression of facts in the matter as all the details were disclosed in the Balance Sheet.

(2.) THE learned JDR files para -wise comments and prays for putting the appellants into terms. He submits that the Commissioner (Appeals) was justified in holding that the services rendered by VISA International along with the appellant are coming within the ambit of Banking and other Financial Services in terms of the reasons given by him in the impugned order. He also submits that the appellants have not furnished the copy of Order -in -Original, Show Cause Notice and the reply to the show cause notice. Therefore the appeal is required to be dismissed under Rule 11A of the Act for not producing the documents.

(3.) THE learned Chartered Accountant undertakes to rectify the defects within a period of 08 days.