9911796707
TMI Blog2011 (2) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... bona fide lapse not to make enquiries about its obligation to pay duty/tax, cannot be made reason for invocation of extended period unless there is evidence to show that such lapse was on account of mala fide intention, and with guilty mind of avoiding payment of tax - There being none in the present case, we are of the view that the demand having been raised beyond the normal period of limitation, is barred by limitation. - ST/92/2006 - A/222/WZB/AHD/2011 - Dated:- 4-2-2011 - ARCHANA WADHWA, B.S.V. MURTHY, JJ. ORDER Archana Wadhwa, Judicial Member - The demand of Service Tax of Rs. 69,70,343 has been confirmed against the appellant along with imposition of penalty of equivalent amount under section 78 of Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r copies of the same to IOCL, which were to be used by them and their engineering contractors for the purpose of preparation of detailed designs and perform detailed engineering, procurement, construction, operation, maintenance and re-construction of the unit. The appellants were also to prepare and provide a Standard Supervisory Operating Manual for use by IOCL or its Engineering Contractors. The Detailed Design Review Agreement was for providing written comment on the detailed design documents sent by IOCL after completion of the review. The said agreement did not envisage deputation or placement of the appellant s engineers at IOCL office in India. However, according to the appellant, the said services as contained in the Detailed Desig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant that the services so provided by them were provided from USA i.e., from a place outside the territory of India. As such, the same were beyond the jurisdiction of Indian Service Tax authority. Section 64 of Finance Act, 1994, provides that Chapter V (providing of levy of collection of Service Tax), shall extend to whole of India except Jammu Kashmir. As such, no service rendered in the areas beyond the territorial waters of India and designated areas, even if these services, otherwise qualify as taxable services, according to service tax provisions, shall not be liable to service tax. For the above proposition, they relied upon the service tax Circular No. 36/4/2001-CX, dated 8-10-2001 and also the clarification given by the Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as having been provided/rendered in India. 9. We find that it is the case where designs, technical know-how etc., which were admittedly prepared by the appellant in Boston, stand transferred by them to IOCL. It is basically a transfer of technical know-how/design, which is nothing but the goods to the appellant. The Commissioner, in Para 23.2 of his order, has specifically observed that the services rendered by the appellant have been consumed in India. If that be so, it can be safely concluded that the services were not rendered in India. The consumption of service in India is not taxable event. Situs of the tax would be where the taxable event occurs and not where the effect or the consequence thereof is felt. The taxable even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity of the Accountant General of Gujarat from the balance sheet of IOCL. 11. We find that the provisions of section 73 of Finance Act, 1994, in terms of which the show-cause notice stand issued, provided for extended period of 5 years, only when the service tax has not been levied or paid on account of reason of fraud, collusion, wilful mis-statement, suppression of facts or contravention of any of the provisions of this Chapter. As such, the extended period of 5 years is available to the revenue only when the service tax stand not paid or less paid on account of mala fide on the part of the assessee. It stands held by various decisions of the Tribunal that mis-statement or suppression or contravention of any provisions, has to be with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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