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TMI Blog2009 (9) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that- the appellant that they were eligible for small service provider under exemption Notification No. 6/05-S.T. and same was not considered by the Asstt. Commissioner, this is a legal point which can be made at this stage and since this had not been earlier considered by the adjudicating authority, the same can be considered in course of t novo proceedings. Thus, the impugned order is set aside and the matter is remanded to the original adjudicating authority for re-determining the quantum of Service tax recoverable from the appellant keeping in view the directions as mentioned above. - ST/376/2009-SM(BR) - 1265/2009-SM(BR)(PB), - Dated:- 24-9-2009 - Shri Rakesh Kumar, Member (T) REPRESENTED BY: Shri Sudhir Malhotra Advocate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner's order. It is against this order, the present appeal has been filed. 2. Heard both the sides. 2.1 Shri Sudhir Malhotra Advocate, ld. Counsel for the appellant made the following submissions: (1) The assessable value for charging Service tax adopted by the Department for the period of demand also includes - (a) the amount billed during the period but not received on which no Service tax should have been charged and (b) the amount outstanding as on 9-7-2004 for the service provided prior to 9-7-04, when the appellant's service was fully exempt from Service tax under Notification No. 13/2003-S.T. and on which no Service tax should be charged. These two amounts should be excluded from the assessable value on which the Service tax h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 6/05-ST. cannot be considered at this stage. 3. I have carefully considered the submissions from both the sides and perused the records. The first plea of the appellant is that Service tax demand has been confirmed even on the amount outstanding as on 9-7-04, which was in respect of the services provided during the period prior to 9-7-04, when this service was fully exemption Service tax under Notification No. 13/2003-S.T. In view of Hon'ble Gujarat High Court's judgment in the case of Schott Glass India Pvt. Ltd. (supra), the Service tax liability arises on the date on which the taxable service is provided and not on the date on which the bill is raised or payment is received. Though liability for Service tax arises on the date on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax can be charged, as the exemption under Notification No. 13/03-ST. would be available. In view of this, the amount on which the Service tax is charged can not include the payments which were outstanding as on 9-7-04 for the service of commission agent provided during period prior to 9-7-04. 3.1 As regards the second plea that Service tax can be charged only on the amount received and not on the billed amount, I agree with this contention as per Rule 6 of the Service Tax Rules, 1994, Service tax is payable by 5th day of the month following the month during which, the payments for the taxable service provided is received. 3.2 For requantifying the Service tax, the matter, however, has to be remanded to the original adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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