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TMI Blog2013 (8) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... - the same covered branch or agency of a foreign based company set up in India to carry out its business on long term basis – does not cover the project office temporarily set up in India only for implementation of a particular project. Stay application – prima-facie case in the favour of assessee – waived the pre deposit of service tax- stay granted. - ST/55266 of 2013 - STAY ORDER NO.57195/2013 - Dated:- 4-3-2013 - Archana Wadhwa And Rakesh Kumar, JJ. For the Appellant : Shri B L Narasimhan, Adv. For the Respondent : Shri Nagesh Pathak, DR. Per: Rakesh Kumar: The facts leading to filing of this appeal and stay application are, in brief, as under. 1.1 The appellant is a company incorporated in Canada. In terms of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued to the project office in India (appellant) for - (a) recovery allegedly non-paid service tax amounting to Rs. 62,60,160/- alongwith interest on it under Section 75 ibid ; and (b) imposition of penalty on the appellant under Section 76, 77 and 78 ibid. 1.2 Subsequent to the above show cause notice, three more show cause notices dated 16/4/10, 15/10/10 and 21/10/11 were issued to the appellant for demand of allegedly non-paid service tax amounting to Rs. 16,32,236/-, Rs. 16,20,713/- and Rs. 22,15,519/- alongwith interest and also for imposition of penalty. 1.3 The above four show cause notices were adjudicated by the Commissioner vide order-in-original dated 10/10/12 by which - (a) total service tax demand of Rs.1,17, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 189 (Tri. - Del.) and Bajaj Auto Ltd. vs. CCE, Aurangabad reported in 2005 (179) E.L.T. 481 (Tri. - Mum.) has held that the service rendered to self is not taxable, that project office of the appellant company in India cannot be treated as its permanent establishment and, as such, the provisions of Section 66A are not applicable, that the impugned order is, therefore, not sustainable, and that since the appellant have a strong prima facie case, the requirement of pre-deposit of service tax demand, interest thereon and penalty may be waive for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 4. Shri Nagesh Pathak, learned DR, opposed the stay application by reiterating the findings of the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entity separate from the head office. On the other hand, the contention of the Appellant is that the project office in India is an extended arm of their head office at Canada, that the project office cannot be treated as a separate entity and that this is a case of providing service by a company to itself and the same would not be taxable. 7. Under Section 66A (2) when a person is carrying on business through a permanent establishment in India and through another permanent establishment in a country other than India, such permanent establishments are to be treated as separate persons for the purposes of this Section. Explanation I to sub-Section (2) states that a person carrying on business through a branch or agency in any country shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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