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TMI Blog2009 (10) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ravi Shankar for the Appellant. M.S. Joy Kumari Chander for the Respondent. ORDER M.V. Ravindran Judicial Member - These two appeals and cross-objection are directed against the Order-in-Original No. 33/2008-Commr. LTU, dated 31-3-2008, hence, they are being disposed of by a common order. In Appeal No. ST/447A/2008, appellant/assessee is in appeal, while in Appeal No. ST/440/2008 the revenue is in appeal. The appellant/assessee has also filed cross-objection against the Revenue's appeal. 2. The relevant facts that arise for consideration are M/s. American Power Conversion (India) (P.) Ltd. No. 187/3, Jigani Industrial Area, Bangalore - 562 106, (hereinafter referred to as 'M/s. APC') are manufacturers of Uninterrupted Power Supply and registered under Service Tax for the taxable services namely, Management, Maintenance or Repair Services. On gathering intelligence that M/s. APC had failed to pay Service Tax on the payments made for obtaining the technical know-how from M/s. American Power Conversion, West Kingston, Rhode Island, USA, the officers of the anti-evasion wing of the Service Tax Commissionerate, Bangalore initiated certain enquiries. The technical k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-10-2007 was issued to the appellant/assessee directing them to show cause as to why:- (a) Service Tax amounting to Rs. 6,99,938 (Rupees Six lakhs ninety nine thousand nine hundred and thirty eight only) (as detailed in Annexure-I) payable for the period from 16-8-2002 to 9-9-2004, under Consulting Engineer Service should not be demanded from them under the proviso to section 73(1) of the Act; (b) Service Tax (including Education Cess) amounting to Rs. 22,17,958 (Rupees Twenty two lakhs seventeen thousand nine hundred and fifty eight only) (as detailed in Annexure-II) payable for the period from 10-9-2004 to 31-3-2005, under Intellectual Property Service should not be demanded from them under the proviso to section 73(1) of the Act; (c) Interest should not be demanded from them under the provisions of section 75 of the Act, for the delayed payment of the service tax as at Sl. Nos. (a) and (b) above; (d) Penalty should not be imposed on them under the provisions of section 76 of the Act for their failure to pay Service Tax in the manner prescribed under section 68 of the Act, read with rule 6 of the Service Tax Rules, 1994; (e) Penalty should not be imposed on them u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax per month whichever is higher, starting from the 1st day after the due date till the date of actual payment of the outstanding amount of service tax for the period subsequent to 18-4-2006 under section 76 of the Finance Act, 1994 for delay in payment of service tax. (v) I impose a penalty of Rs. 1,000 (Rupees one thousand only) under section 77 of the Finance Act, 1994. (vi) I impose a penalty of Rs. 22,17,958 (Rupees twenty two lakhs seventeen thousand nine hundred and fifty eight only) under section 78 of the Finance Act, 1994. 2.4 Aggrieved by such an order, the appellant/assessee is filed an appeal before us. Revenue is aggrieved by that portion of the order, wherein the Adjudicating Authority has set aside the demand, wherein the classifications of the services were to be under "Consulting Engineer Services". 3. Learned Counsel appearing on behalf of the appellant/assessee would submit that the entire case of the Revenue is that during the period 10-9-2004 to 31-3-2005, the appellant is liable to pay the service tax liability on the amount paid as service tax to the foreign party only on the ground that the foreign party does not have an office in India and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecipients of the service. Therefore, levy of service tax on the members of the Petitioners-association on the basis of notification dated 1st March, 2002 is plainly without authority of law. 17. Reliance is placed on the provisions of rule 2(1)(d)(iv) quoted above for justifying the levy of service tax for the period from 16-8-2002. Perusal of the above quoted rule 2(d)(iv) shows that by that provision a person liable for paying the service tax was defined to mean in relation to any taxable service provided by a person who is non-resident or is from outside India to a person receiving taxable service in India. Apart from the fact that this rule is contrary to the provisions of section 68 and other provisions of the Act, under this provision the recipient of the service became liable for paying the service tax provided the service was received in India. The entire case of the petitioners is in relation to the service received by the vessels and ships owned by the members of the petitioner-association outside India. Therefore, it cannot be said that on the basis of rule 2(1)(d)(iv), service tax can be levied on the members of the petitioners-association. It is further to be seen h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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