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TMI Blog2011 (3) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... vided or to be provided - It is thus clear that in respect of services provided by the non-residents, the appellant is required to pay service tax on the amount charged by the service providers - Decided against the assessee. Penalty - Regard to the penalty under Section 78 though I find that as per records of the case certain information was not supplied to the department and was suppressed by the appellant, on verification, complete details of transactions were available in the specific records it will be justified if the penalty under Section 78 is reduced to 50% of the service tax not paid - Since the Revenue cannot produce any evidence to counter the argument of the appellant to prove any delay which was deliberate in payment, the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oached the Tribunal against this order and the points agitated are the same as done in the case of Commissioner (Appeals). It was contended by the appellants in their grounds of appeal that the liability of Rs.1,01,402/- is for the period prior to 18.04.06 i.e. prior to insertion of Section 66A and therefore not applicable. Regarding liability for the year 2006-07 and 2007-08 it was contended that they have never made any payments to the overseas commission agent and have written off also from the books of account. It was also contended that Rs.6,438/- is the differential amount on account of difference in exchange rate and the liability of service tax does not arise. 3. They have relied upon a slew of judgments in support of their case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to the argument of the appellants that as per Provisions of Rule 6 the service tax is required to be paid only on the amount which is received by the service provider the findings of Commissioner (Appeals) are very clear which are as follows: The said provision is applicable only in those cases where service provider is providing services in India. However, in the present case, the non-residents provided services to the appellant outside India and the appellant was liable to pay service tax by reverse charge method. Therefore, the provision of Rule 6 of Service Tax Rules, 1994 is not applicable in the present case. The appellant is liable to pay service tax on the services provided by non-residents on the amount for which bills wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of service tax arises only on making payments to the overseas commission agent and not on the basis of expenses booked in the financial account. As I have concluded earlier the service tax is payable for the year 2006-07 and 2007-08 as confirmed in the Order-in-Original. Since the Revenue cannot produce any evidence to counter the argument of the appellant to prove any delay which was deliberate in payment, the penalty imposed under Section 76 is not sustainable. Accordingly I hold that penalty under Section 76 will not stand. In view of the above findings, Order-in-Original and subsequent Order-in-Appeal are ordered to be partially modified and the quantum of penalty be worked out. But for the above change the Order-in-Appeal is up ..... X X X X Extracts X X X X X X X X Extracts X X X X
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