2019 (4) TMI 1082 - AT - Service Tax

Refund of tax already paid by them alongwith interest - actual amount payable by them was paid much before the issuance of SCN - period 2003-04, 2004-05 - HELD THAT - The appellant assessee has submitted a CA certificate which certifies that the appellant had not repatriated any foreign currency out of India during the relevant period. Accordingly, there is no liability on the part of the appellant assessee and therefore set aside the same. Export of Services - period 2005-06, 2006-07 - HELD THAT - As far as the order of the Ld. Commissioner is concerned, the relief has been allowed on the basis of the documents produced such as CA certificate along with Bank Statement, Copies of telegraphic transfer credit advices and corresponding certificates of foreign inward remittances - there is no infirmity in the order of the Ld. Commissioner and therefore the appeal filed by the Revenue is rejected to that extent. Advances - HELD THAT - The appellant assessee submitted a CA certificate certifying that they had paid tax on such advance after completion of service. Thus the appellant assessee cannot be held liable to pay tax on such advances as the same would result in double payment of tax - demand set aside. Cum tax benefit - HELD THAT - The appellant assessee has not collected service tax and where the gross amount charged by a service provider, for the service provided or to be provided is inclusive of service tax payable, the value of such taxable service shall be such amount as, with the addition of tax payable, is equal to the gross amount charged - decided against Revenue. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Export of Services for the years 2003-04 and 2004-05
2. Export of Services for the years 2005-06 and 2006-07
3. Liability of Service Tax on advances received
4. Cum tax benefit determination

Issue 1: Export of Services for 2003-04 and 2004-05
The appellant provided services and received consideration for export of services during these years. The Adjudicating Authority confirmed the demand for these years due to lack of evidence showing non-repatriation of foreign currency, a condition for exemption. However, the appellant submitted a Chartered Accountant certificate confirming non-repatriation. The Tribunal found no liability on the appellant and set aside the demand.

Issue 2: Export of Services for 2005-06 and 2006-07
Regarding the appeal on export of services for these years, the Tribunal noted that relief was granted based on documents like CA certificate, bank statements, and foreign remittance certificates. Finding no fault in the Commissioner's order, the Tribunal rejected the Revenue's appeal.

Issue 3: Liability of Service Tax on Advances
The appellant received advances before the levy of tax on advances. They paid tax on these advances after completing the services, as certified by a CA. Imposing tax on these advances would result in double taxation, so the Tribunal set aside this liability.

Issue 4: Cum Tax Benefit Determination
The Tribunal upheld the Adjudicating Authority's decision regarding cum tax benefit, where the service tax is included in the gross amount charged. The Tribunal found no merit in the Revenue's appeal on this matter.

In conclusion, since a significant part of the demand was set aside in the original order, and the remaining amount was paid before the Show Cause Notice, the Tribunal found no fraudulent intent to evade tax. Therefore, penalties under various sections of the Finance Act were set aside. The appeal of the appellant was allowed, and the department's appeal was dismissed.