9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (11) TMI 1283 - AT - Service TaxDemand of service tax by invoking extended period of limitation - technical knowhow falls under the category of Consulting Engineer Service and is liable to service tax under reverse charge mechanism, invoking section 66A of the Finance Act, 1994 - HELD THAT - We find that the impugned order has not examined the aspect relating to payment of duty and availment of credit thereon. The impugned order takes note of service tax paid by the appellant and also the fact that the credit of same has been availed as can be seen from impugned order. Therefore, it is apparent that there is no dispute that whatever service tax was to be paid by the respondent would have been available as cenvat credit to them instantly. In these circumstances, invocation of extended period of limitation cannot be sustained. See Nayara Energy Ltd. 2023 (12) TMI 252 - CESTAT AHMEDABAD and Chiripal Polyfilms Ltd. 2021 (3) TMI 1345 - CESTAT AHMEDABAD Thus it can be held that there was no malafide or intention to evade on the part of the respondent and therefore, extended period of limitation could not have been invoked. Consequently no penalty u/s 11AC could be imposed. The appellant has already discharged the duty liability.
Issues:
Revenue's appeal against dropping of proceedings, Classification of service under reverse charge mechanism, Application of negative list regime, Invocation of extended period of limitation, Revenue neutrality and availment of cenvat credit. Analysis: 1. The appeal was filed by Revenue against the dropping of proceedings initiated against the respondent for payment of service tax under reverse charge mechanism. The issue revolved around the classification of technical knowhow imported by the respondent from a foreign party as a "Consulting Engineer Service" and the applicability of service tax under section 66A of the Finance Act, 1994. 2. The Commissioner had initially dropped the demand, stating that the agreement was for the supply of technical knowhow and not for deputation of engineers. The authorized representative for Revenue argued that the transfer of technical knowhow alone without assistance in installation and use would not serve the purpose of the buyer. The Commissioner relied on precedents and the revenue neutrality aspect to support the decision. 3. The Revenue contested the Commissioner's decision, highlighting the changes in the law post the introduction of the negative list regime and arguing that the service provided fell outside the exemptions and negative list prescribed under the Finance Act, 1994. The Revenue also emphasized that the respondent treated the technical knowhow as a service, not goods, as evidenced by the non-payment of custom duty. 4. The respondent argued that the grounds invoked in the review, specifically sections 66B and 66D of the Finance Act, 1994, were beyond the scope of the show cause notice. They relied on legal precedents to support their argument that the proceedings were beyond the initial notice and emphasized the revenue neutrality aspect, as they had already availed the credit of service tax paid. 5. The issue of the extended period of limitation was raised, with the respondent contending that the show cause notice was issued beyond the permissible period. They argued that the demand was revenue neutral as the service tax paid was available as cenvat credit, making the invocation of the extended period unjustified. Legal precedents were cited to support this argument. 6. The Tribunal, after considering the submissions from both sides, held that there was no malafide intent or evasion on the part of the respondent. Consequently, the extended period of limitation could not be invoked, and no penalty under section 11AC could be imposed. The Tribunal dismissed the Revenue's appeal, emphasizing the revenue neutrality and availment of cenvat credit by the respondent.
|
