P. ANJANI KUMAR :

M/s Tek Travels Pvt Ltd, the respondent-assessee is an approved agent of International Air Ticketing Association (IATA) and are engaged in providing the services relating to booking online air tickets to their clients. The respondent-assessee has entered into an agreement with HDFC and American Express Banks; as per the agreement a commercial credit card was provided to the respondent-assessee and upon using such credit card for booking airline tickets, the respondent-assessee would get an incentive/reward points which could be converted to cash incentives within a specified period. Revenue formed an opinion on conduct of an audit that the respondent-assessee is rendering a declared service to the banks and as such they are liable to pay service tax as applicable. Show Cause Notices dated 04.05.2017 and 21.03.2018, covering the period 2013-14 to 2017-18 (upto 30.06.2017), demanding a service tax of Rs. 8,03,00,687/-, along with interest and penalties, were issued to the appellants. Commissioner of Central GST, Gurgaon I vide impugned order dated 31.12.2018 decided both the show cause notices together and dropped the proceedings. The impugned order was reviewed by a committee of Chief Commissioners and accordingly the instant appeal was filed.

2. Shri Siddharth Jaiswal, Additional Commissioner and Ms. Amita Gupta, authorized representatives for the Revenue reiterate the grounds of appeal and submits that:

 As per Section 65B (44) “Service” means any activity carried out by a person for another for consideration and includes a declared service.

 The use of the commercial card issued by the bankers constitutes a performance of an activity; the assessee has agreed to do an act as envisaged in the clause (e) of Section 66(e); the adjudicating authority failed to appreciate this position.

 Adjudicating authority failed to appreciate that there exists a contractual obligation between the respondent-assessee and the banks for release of cash incentive.

 The adjudicating authority failed to appreciate that in the era of self assessment the respondent-assessee failed to disclose all material facts and pay appropriate service tax and therefore, invited the provisions related to invocation of extended period.

3. Ms. Krati Singh assisted by Ms. Jashanpreet Kaur, learned counsels for the appellant submits that the review orders and grounds of appeal travel beyond the show cause notice by invoking Section 66 (E)(e) of the Finance Act, 1994, whereas the reason of such allegation in the show cause notice. Travelling beyond Show Cause Notice is not permissible in view of the following decisions:

 Capgemini Technology Service India Ltd., 2023 (11) TMI 306-CESTAT Mumbai

 M/s Navnirman Construction Company, 2025 (1) TMI 735- CESTAT New Delhi

 Way 2 Wealth Brokerks PVt Ltd. 2019 (5) TMI 1146- CESTAT Bangalore

 Surya Prakaas Foundry, 2018 (8) TMI 1575-CESTAT Chennai

 Shital International 2010 (259) ELT 165 (SC)

4. Learned Counsel further submits that the arrangement between the respondent-assessee and the banks does not constitute a declared service; the cash back incentives for not a consideration for any service; Section 66(E)(e) covers activities as per the agreement and if there is a consideration for such an activity; Circular No. 214/1/2023-ST dated 28.02.2023 clarifies the same. The appellant department wrongly construes that the letter dated 09.12.2023 issued by HDFC bank shows a contractual obligation; in fact the letter only indicates the percentage of cashback as per monthly usage of the credit card. She submits that in terms of Section 65 (B) the four elements required for levying service tax are (i) existence of a service provider (ii) existence of a service recipient (iii) existence of a service and (iv) existence of a consideration for such service. She relies on Bhayana Builders Pvt Ltd and others, 2018 (2) TMI 1325 and submits that only an amount payable for taxable service can be