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TMI Blog2009 (5) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 9,10,370 under section 78 of Finance Act, 1994. 2. Heard both the sides. 3. On perusal of the records, we find that the issue is being in a narrow campus, the application filed by the Revenue for the stay of the operation of the impugned order is dismissed and appeal itself is taken up for disposal. 4. The issue involved in this case is regarding service tax liability on the respondents on the amount of commission received by them for rendering the service provided by a non-resident of India. The Adjudicating authority had confirmed the duty of service tax liability and imposed penalties. On appeal, ld. Commissioner (Appeals) has set aside the impugned order by coming to the following conclusions : "(10) In this regard, it is observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36/2004-S.T., dated 31-12- 2004 [which notified a taxable service provided by a person who is a non-resident or is from outside India and who does not have any office in India as a taxable service for the purpose of section 68(2) of the Finance Act] provided the necessary basis for recovery of service tax from the service recipient in India. Further, considering that the Explanation in section 65(105) of the Finance Act, 2004 that was introduced - "For removal of doubts, it is hereby" was of curative explanatory/clarificatory nature, it would be applicable retrospectively also. Accordingly, in the light of these provisions, viz., introduction of the Explanation to section 65(105) ibid with retrospective application, there was sufficient le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside the demand of Service Tax towards off shore services. Similarly, the case on hand is also covered by the decision given by the Tribunal, Delhi, in the case of 'Aditya Cement v. CIT 2007 (7) STR 153 (Tribunal Delhi)' wherein, the Tribunal held that: 'It is well-settled law that the rules are subservient to the sections and if section do not provide for discharge of tax by the recipient of services from non-resident having no office, then it would be a futile exercise to rely upon the rules to collect the tax.' In the instant case, I observed that in spite of the provisions of rule 2 defining the person liable to pay tax, to include the persons receiving the taxable service from a non-resident, there cannot be a liability on the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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