Whether SCN issued to assessee sustainable if the amount on which impugned demand has been confirmed has been already included in the SCN issued by commissionerate of another area?

PJ/Case Law /2016-17/3339

Case:- I.C. FINANCIAL ANALYSIS OF INDIA VersusC.C. & C. EX., BHOPAL
Citation:-2016 (43) S.T.R. 287 (Tri. - Del.)
Brief facts:-Appeal is filed against order-in- appeal dated 27-7-2009 in terms of which service tax demand of Rs. 81,138/- for the period March, 2004 to July, 2005 was sustained along with interest and penalties on the ground that the appellant provided commercial training or coaching service but did not pay service tax thereon.
Appellant’s contention:-The appellant has pleaded that it is not contesting the demand on merits as the issue has been decided against it in its own case vide CESTAT order reported at 2013 (30) S.T.R. 273 (Tri. - Bangalore). It however contended that the amount on which impugned demand has been confirmed has already been included in the show cause notices issued by Service Tax commissionerate Hyderabad and that on the same ground, Deputy Commissioner, Alwar had dropped similar demand noting that Hyderabad S.T. Commissionerate intimated him that the appellant’s office at Hyderabad had been issued show cause notices for the period July, 2003 to March, 2008 covering the entire amount received by all the branches of the appellant all over India.
Respondent’s contention:-The respondent reiterated the findings of the impugned order.
Reasoning of judgment:-The tribunal considered the contention of the appellant and perused the records. It found that Alwar C. Ex & S.T. Division vide OIO dated 14-6-2007 has indeed dropped a similar demand raised in respect of the appellants Alwar unit on the ground that the amount received by appellant’s Alwar unit has been included in the show cause notice issued to the appellant at Hyderabad. It found that the appellant had taken a similar plea in the present case before the primary adjudicating authority and the primary adjudicating authority (Assistant Commissioner, Central Excise Division, Sagar) in its adjudication order has taken note of this and also of the Commissionerate Central Excise, Hyderabad letter dated 28-8-2008 informing that notices issued by Hyderabad Commissionerate covered all the amounts paid by the students enrolled in the appellant’s campus and off-campus centres located all over India although there was no branch-wise details available as the appellant submitted consolidated figures covering all the amounts paid by the students enrolled in the campus and off-campus centres located in all over India. In view of the clear report from Central excise Commissionerate Hyderabad that the show cause notices issued to the appellant at Hyderabad covered the fee recovered by all the off-campus centres located all over India, it follows that the fee recovered at Sagar was also covered therein and therefore the show cause notice resulting in the impugned order-in-appeal was not required to be issued at the 1st place. In view of the aforesaid analysis, the appeal is allowed.
Decision:-Appeal allowed.
Comment:-The gist of the case is that the assessee is providing commercial training or coaching services and taxability issue was settled against appellant in their own case reported in 2013 (30)S.T.R.273 (Tri-Bang.). However, since present demand was included in SCN issued to appellant’s Hyderabad office and based on it, another Commissionerate already dropped demand and further, Commissioner, Hyderabad also reported that SCN issued to Hyderabad office covered all fee collected by off-campus centres all over India, hence, SCN issued to appellant itself is not sustainable in accordance with Sections 65(26), 65(27), 65(105)(zzc) and 73 of Finance Act, 1994. [para 3]

Prepared by:- Praniti Lalwani

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PJ/Case Law /2016-17/3339

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