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TMI Blog2009 (8) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... -4-2006 invoking rule 2(1)(d)(iv) of the Rules was not sustainable.- in view of above decision, demand is not sustainable for period prior to 18-4-06 – further it could not be held that liability to tax on services received from foreign companies was not known to assessee, plea of limitation on ground of revenue neutrality could not be advanced - However, since the department was aware of the nature of the impugned transactions as early as in July 2005 from the agreements furnished and tax paid from the ST 3 returns periodically filed by ABB as an assessee providing taxable services, we find the claim that show-cause notice dated 5-12-2007, was barred by limitation - ST/468 OF 2008 - 1110 OF 2009 - Dated:- 5-8-2009 - M.V. RAVINDRAN, JUDI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the parties. 2. Reiterating the arguments taken in the appeal before us, the learned Counsel for the appellants submitted that prior to the enactment of section 66A of the Act on 18-4-2006 vide the Finance Act, 2006, there were no provisions in the Act which authorized the authorities to collect tax on services received by a person in India from a person having his business establishment located in a country other than India. He relied on various judicial authorities in support of the above claim. He invited our attention to the judgment of the Hon'ble High Court of Delhi in the case of Unitech Ltd. v. CST [2009] 21 STT 330 wherein the Hon'ble High Court concurred with the judgment of the Hon'ble High Court of Bombay in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o recover service tax leviable on services provided by a person who is non-resident or is from outside India and does not have any office in India, from the person receiving such service in India. In Indian National Shipowners Association's case (supra) the Hon'ble High Court had held that demand of service tax for the period prior to 18-4-2006 invoking rule 2(1)(d)(iv) of the Rules was not sustainable. The Hon'ble High Court observed as under : "20. ... It appears that it is first time when the Act was amended and section 66A was inserted by Finance Act, 2006 with effect from 18-4-2006, the respondents got legal authority to levy service tax on the recipients of the taxable service. Now, because of the enactment of section 66A, a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. In support of the above claim, the appellant has relied on the following case-law : (a) Amco Batteries Ltd. v. CCE 2003 (153) ELT 7 (SC) (b) CCE v. Jamshedpur Beverages 2007 (214) ELT 321 (SC) (c) CCE v. Textile Corpn. Marathwada Ltd. 2008 (231) ELT 195 (SC) (d) CCE v. Mahindra Mahindra Ltd. 2004 (171) ELT 159 (SC) (e) CCE v. Narayan Polyplast 2005 (179) ELT 20 (SC) (f) CCE v. Naramada Chematur Pharma Ltd. 2005 (179) ELT 276 (SC) 7. It is also submitted that the agreement of the appellant governing the transactions with the foreign companies found liable to service tax had been submitted to the departmental authorities on 9-7-2005. For the period April, 2006 to June, 2006, the relevant date for filing ST3 returns by ABB w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in addition to assessee being entitled to benefit of Modvat credit. It was held that availability of Modvat credit to an assessee by itself was not conclusive or decisive consideration; it may be one of the relevant considerations for deciding applicability of proviso to section 11A(1) of Central Excise Act, 1944. We find that the above ratio applies equally to invocation of larger period for demand of service tax not paid under section 73(1) of the Act. Since we cannot hold that ABB's liability to tax on the services it received from foreign companies during the period April, 2006 to June, 2006 was not known to it in view of the express provisions contained in section 66A of the Act and rule 2(1)(d)(iv), the plea of limitation on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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