PKSS Infrastructure (P) Ltd. v. CST

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The Tax Publishers 2019 TaxPub(ST) 0066 (CESTAT-Del) PKSS Infrastructure (P) Ltd. v. CST FINANCE ACT, 1994 --Business Auxiliary Service --Collection of toll tax on behalf of MCDTaxability----Collection of taxes and statutory levies on behalf of statutory authorities was exempted from payment of service tax in view of Notification No. 13/2004, dated 10-9-2004. --Assessee was awarded a contract by Municipal Corporation of Delhi (MCD) for collection of toll tax. Revenue took the view that assessee, being the authorized agent of MCD, was providing Business Auxiliary Service to it. *Held:* Activity of collecting toll tax being a function sovereign in nature, hence the activity being done by MCD itself or being delegated to be done by someone else authorized in that respect, the activity would still retain the character of it being sovereign in nature. Therefore, the element of any business or commerce could not be attributed to such an activity. Moreover, collection of taxes and statutory levies on behalf of statutory authorities was exempted from payment of service tax in view of Notification No. 13/2004, dated 10-9-2004. Hence, the assessee would not be liable to pay any tax under the category of Business Auxiliary Service. Finance Act, 1994 Section 65(19) *REFERRED :* Mateshwari Indrani Contractors (P) Ltd. v. C.C.E. & S.T.-Jaipur in (Appeal No. ST/60428/2013 (DB), dt. 6-6-2018): 2018 TaxPub (ST) 1244 (CESTAT-Del) M/s. Bans Sands TTC v. CCE, New Delhi in (Service Tax Appeal No. 392 of 2010, dt. 11-8-2016): 2016 TaxPub (ST) 1557 (CESTAT-Del) and Intertoll India Consultants (P.) Ltd. v. Commissioner of Central Excise, Noida 2011 (24) S.T.R. 611 (Tri - Del.): 2012 TaxPub (ST) 112 (CESTAT-Del) FAVOUR : In assessee's favour A.Y. : FINANCE ACT, 1994 --Adjudication--ValidityOrder passed beyond the scope of show cause notice ----Where the order passed by Adjudicating Authority was beyond the scope of show cause notice, the same was liable to be set aside. --Assessee-company was aggrieved by Revenue's action of confirming demand under the category of Business Auxiliary Service. It contended that the show cause notice throughout alleged its service/activity as Business Support Service (BSS), however, in the last para thereof, proposed the demand under Business Auxiliary Service (BAS). Further, the Adjudicating Authority confirmed the demand under Business Auxiliary Service. Accordingly, assessee prayed that the impugned order to be set aside as the same was beyond the scope of show cause notice. *Held:* It was found that the mention of assessee's activity, as BAS in the final para of show cause notice was nothing more than a typographical error since the show cause notice was discussing about the features of Business Support Service. Adjudicating Authority ignored such aspect, rather confirmed the demand under Business Auxiliary Service. It is well settled that Adjudicating Authority cannot go beyond the scope of show cause notice, thus, the impugned order was set aside as the same was beyond the scope of show cause notice. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers 2019 TaxPub(ST) 0066 (CESTAT-Del)

PKSS Infrastructure (P) Ltd. v. CST

FINANCE ACT, 1994

--Business Auxiliary Service --Collection of toll tax on behalf of MCDTaxability----Collection of taxes and statutory levies on behalf of statutory authorities was exempted from payment of service tax in view of Notification No. 13/2004, dated 10-9-2004. --Assessee was awarded a contract by Municipal Corporation of Delhi (MCD) for collection of toll tax. Revenue took the view that assessee, being the authorized agent of MCD, was providing Business Auxiliary Service to it. Held: Activity of collecting toll tax being a function sovereign in nature, hence the activity being done by MCD itself or being delegated to be done by someone else authorized in that respect, the activity would still retain the character of it being sovereign in nature. Therefore, the element of any business or commerce could not be attributed to such an activity. Moreover, collection of taxes and statutory levies on behalf of statutory authorities was exempted from payment of service tax in view of Notification No. 13/2004, dated 10-9-2004. Hence, the assessee would not be liable to pay any tax under the category of Business Auxiliary Service.

Finance Act, 1994 Section 65(19)

REFERRED : Mateshwari Indrani Contractors (P) Ltd. v. C.C.E. & S.T.-Jaipur in (Appeal No. ST/60428/2013 (DB), dt. 6-6-2018): 2018 TaxPub (ST) 1244 (CESTAT-Del) M/s. Bans Sands TTC v. CCE, New Delhi in (Service Tax Appeal No. 392 of 2010, dt. 11-8-2016): 2016 TaxPub (ST) 1557 (CESTAT-Del) and Intertoll India Consultants (P.) Ltd. v. Commissioner of Central Excise, Noida 2011 (24) S.T.R. 611 (Tri - Del.): 2012 TaxPub (ST) 112 (CESTAT-Del)

FAVOUR : In assessee's favour

A.Y. :

FINANCE ACT, 1994

--Adjudication--ValidityOrder passed beyond the scope of show cause notice ----Where the order passed by Adjudicating Authority was beyond the scope of show cause notice, the same was liable to be set aside. --Assessee-company was aggrieved by Revenue's action of confirming demand under the category of Business Auxiliary Service. It contended that the show cause notice throughout alleged its service/activity as Business Support Service (BSS), however, in the last para thereof, proposed the demand under Business Auxiliary Service (BAS). Further, the Adjudicating Authority confirmed the demand under Business Auxiliary Service. Accordingly, assessee prayed that the impugned order to be set aside as the same was beyond the scope of show cause notice. Held: It was found that the mention of assessee's activity, as BAS in the final para of show cause notice was nothing more than a typographical error since the show cause notice was discussing about the features of Business Support Service. Adjudicating Authority ignored such aspect, rather confirmed the demand under Business Auxiliary Service. It is well settled that Adjudicating Authority cannot go beyond the scope of show cause notice, thus, the impugned order was set aside as the same was beyond the scope of show cause notice.