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2010 (10) TMI 274 - AT - Service TaxDemand - IT and IT enabled services - Business Auxiliary Services - Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 - Since the service tax liability is not contested by the appellants, the impugned order to the extent it upholds the service tax liability of Rs. 12,97,960/- is upheld and the appeal filed by the appellant to that extent is rejected - Since it is an admitted fact that the amount is paid by the appellants for rendering services by non-resident and person residing outside India during the relevant period - High Court of Mumbai in the case of Indian National Shipowners Association v. Union of India (2008 -TMI - 32013 - HIGH COURT OF BOMBAY) it was held that the issue will cover in favour of the appellant herein for the demand of service tax for the period from 7/2003 to 3/2006 Regarding penalty - provisions of Section 73 of the Finance Act, 1994 will apply inasmuch as having paid the demand before issue of show-cause notice along with interest in question, imposition of penalty would not arise.
Issues Involved:
1. Service tax liability for the period 7/2004 to 6/2006. 2. Service tax liability for the period 7/2003 to 3/2006. 3. Imposition of penalty under Order-in-Original No. 7/2008. 4. Issuance of a subsequent show-cause notice for enhancement of penalty under Order-in-Original No. 23/2008. Detailed Analysis: 1. Service Tax Liability for the Period 7/2004 to 6/2006: The appellant did not contest the service tax demand of Rs. 12,97,960/- for this period. The Tribunal upheld the service tax liability of Rs. 12,97,960/- as the appellant accepted this liability. 2. Service Tax Liability for the Period 7/2003 to 3/2006: The appellant contested the service tax demand of Rs. 4,94,57,132/- imposed by the adjudicating authority under Rule 2(1)(d)(iv) of the Service Tax Rules, 1994. The appellant argued that the service tax liability as a recipient of services would only arise from 18-4-2006, as held by the Hon'ble High Court of Mumbai in the Indian National Shipowners Association case, which was affirmed by the Hon'ble Supreme Court. The Tribunal agreed with the appellant, noting that the service tax liability under Section 66A of the Finance Act, 1994, would only apply from 18-4-2006. The Tribunal cited several judgments, including those of the Hon'ble High Court of Karnataka, which supported this interpretation. Consequently, the Tribunal set aside the service tax demand of Rs. 4,94,57,132/- for the period 7/2003 to 3/2006. 3. Imposition of Penalty under Order-in-Original No. 7/2008: The appellant contested the imposition of penalties. The Tribunal found that since the major portion of the demand was set aside and the amount of Rs. 12,97,960/- was paid before the issuance of the show-cause notice, the imposition of penalties was not justified. As per Section 73 of the Finance Act, 1994, having paid the demand before the issuance of the show-cause notice along with the interest, the imposition of penalties would not arise. The Tribunal set aside the penalties but upheld the interest liability on the service tax amount of Rs. 12,97,960/-. 4. Issuance of Subsequent Show-Cause Notice for Enhancement of Penalty under Order-in-Original No. 23/2008: The Tribunal found that the Commissioner of Central Excise could not issue another show-cause notice for the enhancement of penalties on the same issue after an adjudication order had been passed. The proper course of action would have been to pursue other options available under the statute. Therefore, the Tribunal set aside the Order-in-Original No. 23/2008 dated 6-10-2008 as it was not in accordance with the law. Conclusion: The Tribunal upheld the service tax liability of Rs. 12,97,960/- for the period 7/2004 to 6/2006 but set aside the penalties associated with it. The service tax demand of Rs. 4,94,57,132/- for the period 7/2003 to 3/2006 was set aside based on the interpretation of Section 66A of the Finance Act, 1994. The subsequent show-cause notice for enhancement of penalties was also set aside as it was not legally sustainable. Both appeals were disposed of accordingly.
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