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TMI Blog2012 (11) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is only Rs. 100/- and not Rs. 100/- plus Rs. 5/- (TDS) - appellant had to pay service tax only on the amount billed and paid to the service provider abroad - appellant had discharged service tax on the amount billed and paid - appellant need not pay anything more than what they have paid already as no case is made against them - Appeal allowed - - - 144/2011(MST) - Dated:- 25-8-2011 - Shri P. Ayyam Perumal, J. REPRESENTED BY : Shri P.C. Anand, CA, for the Assessee. None, for the Department. [Order]. This is an appeal filed by M/s. Mainetti (India) Pvt. Ltd, Chennai (hereinafter called the appellant) against the lower adjudicating authority s impugned order-in-original No. 79/2009, dated 23-11-2009. 2. Briefly stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,50,297/- towards Service tax , Ed. Cess and SHE cess under proviso to Section 73(1) of the Finance Act, 1994 along with interest in terms of Section 75 of the Finance Act besides proposal to impose penalties under Section 76, 77 and 78 of the Finance Act, 1994 was issued to the appellant. After due process of law, the Lower Adjudicating Authority confirmed the proceedings initiated in the Show cause notice vide the impugned Order-in-Original but refrained from imposing the penalty under Section 76 of the Finance Act, 1994. 3. Aggrieved, the appellant has filed this appeal mainly on the following grounds :- (1) that the Order-in-Original has not discussed the issue as to why the TDS amount would become includable in the facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of proviso to extended period of time is in order and (ii) TDS amount deducted by the appellant is includable in the value of taxable service. 5.1 I find from the records that the appellant was issued with Show cause . notice for non-inclusion of TDS amount deduction in the taxable value for the payment of Service tax. The period of dispute is from 4/2005 to 12/2007 and ; the SCN invoking proviso to the extended period of time was issued on 30-9-2008. The appellant is a registered provider of taxable services under the category Goods Transport Agency Service and Intellectual Property Right Service. It is an undisputed fact that the appellant are paying Service tax on Royalty payments paid to the foreign service provider. I find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Government of India by the appellant was not out of total consideration paid to the foreign company and thus TDS amount should not form part of the gross value of the billing. Thus, there is no shortfall with reference to the payment of service tax as the appellant had paid service tax on the gross amount paid to the Foreign Service provider. I also find that the service tax paid by the appellant on the amount of money paid to the foreign company is not disputed by the Department. As the Income Tax element was paid directly to the Government of India by the appellant, I hold that it should not form part of the gross amount for the calculation of service tax. 5.3 Taking into account the peculiar situation in the instant case as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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