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TMI Blog2013 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... service is already taxable at the time of revision of rate. Taxable events in the present writ petition had admittedly occurred prior to 01.03.2008. At that point of time the rate of service tax applicable in respect of the services in question was 2% and not 4%, which came into effect only on or after 01.03.2008. In both the writ petitions the date of receipt of payments was subsequent to 01.03.2008 but that would not make any difference because it is not receipt of payment which is the taxable event but the rendition of service - The only thing that happened after May 14, 2003 was that the payments were received after that date. That, in our view would not change the date on which the taxable event had taken place. Since, the taxable event in the present case took place prior to May 14, 2003, the rate of tax applicable prior to that date would be the one that would apply. In the present case, the rate of five per cent would be applicable and not the rate of eight per cent - Decided against Revenue. - ST/3914-3915/2012-ST(SM) and ST/55656 & 55664/2013-ST(SM) - Final Order No. 57426-57429/2013 - Dated:- 30-8-2013 - Mr. Manmohan Singh, J. For the Appellant : Shri R.K. Ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cenvat Credit Rules, 2004. The adjudicating authority has disallowed the credit merely saying that the documents submitted by the appellants were not supportive. The appellants claimed that the invoices, against which the Cenvat Credit were availed, were submitted along with the ST-3 return and also with their reply dated 11.10.10. The copies of the relevant invoices substantiating the claim of Cenvat Credit, on examination, have been found to be substantiating the claim of Cenvat Credit of the appellants. Consequently, the order disallowing Credit of Rs.1,34,061/- and its recovery along with interest there on is not sustainable and is liable to be set aside. 5. The Commissioner (Appeals) further held that the appellants have submitted that for the services rendered prior to 10.09.2004, Service Tax has been paid as per the bills raised and Service Tax collected. It is to be noted that the rate of Service Tax was increased from 8% to 10.2% with effect from 10.09.2004 and there cannot be any justification for charging Service Tax @ 10.2% for the services rendered prior to 10.09.2004, when the effective rate was 8%. The Hon ble Court and CESTAT, have held in the following cases t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of payments was subsequent to 01.03.2008 but that would not make any difference because it is not receipt of payment which is the taxable event but the rendition of service. 11. Besides, the said decision has also considered letter F.No.345/6/2007-TRU dated 28.4.2008 which has been relied upon by the Revenue. The said decision of Hon ble High Court has been followed by Hon ble Delhi High Court again in the matter of Commissioner of Service Tax Vs. Ratan Singh builders Pvt. Ltd. 12. Heard both sides and also perused documents on record. 13. I find that the main reliance of the Revenue was on letter F.No.345/6/2007-TRU dated 28.4.2008 which clarified at para 3 as under:- As per section 66 of the Finance Act, 1994, service tax shall be levied at the rate of 12% of the value of the taxable service. Section 67 pertains to valuation of taxable services for charging service tax. As per rule 6(1) of Service Tax Rules, 1994, service tax is required to be paid by the 5th of the month immediately following the calendar month in which the payments are received towards the value of taxable services. Service tax shall, therefore, become chargeable on receipt of payment ad on the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994 inasmuch as the latter provision was inserted in 2012 which came in effect from 28.02.2012. Furthermore, even Rule 4(a)(i) of the Point of Taxation Rules, 2011 was not applicable to the facts of the present case in as much as those rules also came into effect much later in 2011. Recently, we had to consider a similar issue in Commissioner of Service Tax Vs. Consulting Engineering Services (I) Pvt. Ltd. in St. April, 76/2012 decision on 14.01.2013 wherein we held that in the absence of any rules, we would have to examine as to what is the taxable event. In that context we had held that the taxable event as per the Finance Act, 1994 was the providing or rendition of the taxable services. This is exactly what the Supreme Court had held in Association of Leasing Financial Service Companies (supra). 16. I further notice that Hon ble Delhi High Court in yet another case of Commissioner of Service Tax Vs. Consulting Engineering Services (I) P. Ltd., reported as [2013] 58 VST 133 (Delhi), has given a categorical finding that the date of rendition of taxable service relevant for the purpose of applying the rate of tax. The relevant para is extracted below:- In the absence of any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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