fiogf49gjkf0d
Show cause notice could be issued without mentioning specific sub clause of the definition of business auxiliary service if other contents are indicative of appropriate charge.
Facts:
Revenue was of the view that the assessee short paid/ not paid service tax and accordingly, issued show cause notice under business auxiliary services without specifying the sub-clause under which the service was covered. The respondent contested the demand on various grounds including that the activities were not in the nature of business auxiliary services. The orderin- original confirmed the demand and also specified the applicable sub-clause of business auxiliary service. Referring to various decisions on the subject matter, the Tribunal quashed the show cause notice on the grounds of violation of principles of natural justice since the show cause notice did not specify the sub-clause of section 65(19). The Tribunal observed that though the services were prima facie assumed to be in the nature of Business Auxiliary services, the reason for such assumption was not mentioned in the show cause notice. Being aggrieved, the department filed the appeal to the Hon’ble High Court after the due date and sought the condonation of delay in filing appeal.
Held:
After condoning the delay in filing appeal and noting the contents of the show cause notice, it was observed that the respondent knew the relevant facts and provisions were mentioned in the show cause notice. The object of the show cause notice is to inform assessee so that relevant facts and submissions can be brought on the record and the assessee is not prejudiced by manifestly vague notice which leaves him confused. The assessee must be given reasonable opportunity and made aware as to what he has to meet. The show cause notice cannot be read as a legislative enactment which is to the point, precise and required to show exceptional lucidity. The assessee is to be conveyed the allegations properly. After the show cause notice is served, the conduct of the parties, opportunity of personal hearing etc., are relevant factors to ascertain whether the decision was unjust or not and it was granted to the respondent. Though specific sub-clause of the definition of business auxiliary services was not mentioned in the show cause notice, the show cause notice was drafted in a way that the person reading the show cause notice can make out that the demand was raised under which sub-clause and therefore the appeal is disposed off in the said terms.
