Custom, Excise & Service Tax Tribunal
M/S. Pagariya Auto Center vs Commissioner Of Central Excise, ... on 8 September, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No.ST/558,559/11-Mum (Arising out of Order-in-Appeal No. AGS(118)90/2011 dated 09.06.2011& AGS (116) 84/2011 dated 09.06.2011 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad.) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== M/s. Pagariya Auto Center M/s. Dhoot Motors Appellant Vs. Commissioner of Central Excise, Aurangabad Respondent Appearance: Shri R.S. Indani, Advocate for Appellant Shri S.R.Nair, E.O. (AR), for Respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing : 08/09/2015 Date of Decision : 08/09/2015 ORDER NO Per: M.V. Ravindran
These two appeals are disposed of by a common order as the issue involved in these cases is the same.
2. These two appeals are directed against orders in appeal number- AGS(118)90/2011 dated 09.06.2011& AGS (116) 84/2011 dated 09.06.2011.
3. Heard both sides and perused the records.
4. On perusal of the records we find that the issue involved in this case is regarding the service tax liability on the appellants under the category of Business Auxiliary Services in respect of the commission received by them for financial institutions during the period of April 2008 to March 2009 for providing the services to such financial institution. It is the case of the appellants counsel that the first appellate authority has confirmed the demands under the category of Business Support Services, while the show cause notice seeks to impose tax under the category of Business Auxiliary Services. He would submit that the impugned order is traversing beyond the allegations in show cause notice, is liable to be set aside.
5. Learned departmental representative reiterates the findings of the lower authorities.
6. On consideration of the submissions made, we find that the learned first appellate authority has confirmed the demand under the category of Business Support Services. We also find that the allegations in show cause notice directed the appellants to show cause notice as to why service tax liability should not be demanded from them under the category of Business Auxiliary Services. We find that learned counsel was correct in stating that the first appellate authority has traversed beyond the allegations made in the show cause notice.
7. We find that in similar set of facts, this bench vide final order no. A/2700/15/STB dated 12-08-2015, in case of Ratnaprabbha Motors in Appeal No. ST/189/2010, had held that order of first appellate authority if traversed beyond the allegations made in the show cause notice, accordingly is not sustainable; following the said ratio, we hold that the impugned orders in these appeals are incorrect and liable to be set aside only on the ground that they are confirming the demands on the appellants under the category of Business Support Services, while the allegations in show cause notice were for the demand of tax under the Business Auxiliary Services.
8. Both the appeals are allowed with consequential relief, if any.
(Operative portion of the order pronounced in court on completion of the hearing of case).
(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) akp 1 3 APPEAL No.ST/558,559/11-Mum